Court File and Parties

Court File No.: D54339/11 Date: 2014-08-27

Ontario Court of Justice

Between:

G.T.B. Applicant

Stella Iriah Anaele, for the Applicant

- and -

Z.B.B. Respondent

William Fuhgeh, for the Respondent

Karen Lindsay-Skynner, for the Office of the Children's Lawyer, on behalf of the Children

Heard: Written submissions in chambers

Justice S.B. Sherr

Costs Endorsement

Background

[1] On August 5, 2014, the court released its reasons for decision after hearing the trial of this parenting and child support case. It granted the respondent (the mother) custody of the parties' two children. The father was granted graduated access to the children, starting with day visits and then extending to overnight visits in the Greater Toronto Area. The father was ordered to pay child support of $400 per month, starting on August 1, 2014, based on an imputed annual income of $27,600, and $508 per month, starting on January 1, 2015, based on an imputed annual income of $35,000 per annum.

[2] The parties were given permission to make written costs submissions.

[3] The mother seeks her full recovery costs of $8,358.50 from the father. The father has asked that no order for costs be made. The Office of the Children's Lawyer did not make costs submissions.

Legal Framework for Costs

[4] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[5] Sub-rule 2(2) of the Family Law Rules (all rules references in this decision relate to these rules) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. Sambasivam v. Pulendrarajah, 2012 ONCJ 711, [2012] O.J. No. 5404 (Ont. C.J.).

[6] Subrule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ). The position each party took at trial should also be examined.

Failure to Make Settlement Offers

[7] Neither party made an offer to settle. This is disappointing, particularly when the parties are represented by counsel. It is also unreasonable behaviour. The court repeats its comments made in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774, [2009] O.J. No. 6370 (OCJ) where it wrote:

4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.

5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party's behaviour in the case, clauses 24(5)(b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle.

[8] The failure of the parties to make offers to settle means that the court must look at their respective positions at trial to determine who was successful. The mother claims that she was the successful party. The father submits that success was divided, and that applying subrule 24(6), a no-costs order is appropriate.

Analysis of Success on Individual Issues

Custody

[9] The mother was the successful party on the custody issue. She was granted custody of the children – the father sought joint custody. In the reasons for decision the court wrote that the evidence in support of the mother's claim was overwhelming and that the issue should not have been litigated.

Access

[10] The mother was also the successful party on the access issues. At the outset of the trial, she supported the position of the Office of the Children's Lawyer that the children start with day visits and move to overnight visits, if the visits go well. By closing submissions, she made a more generous proposal of moving immediately to overnight visits. The court's decision adopted a more gradual approach to access (although more specific and extensive than proposed by the Office of the Children's Lawyer). The father sought extended holiday access in the United States. This was not granted. An order was made prohibiting the father from removing the children from the Province of Ontario without prior court order.

[11] The court also considered that the father brought this application because he was being denied access to the children and it took a considerable period of time before the mother came to the position of offering him any access.

Child Support

[12] There was divided success on the child support issue. The mother sought to impute the father's income at $60,000 per annum for the purpose of calculating his child support obligation. The father asked that his income be fixed at $14,400 per annum, for the purpose of this calculation. Annual income of $27,600 was imputed to the father for 2014 and $35,000 per annum starting on January 1, 2015 for the purpose of calculating his support obligations.

Presumption of Costs

[13] The mother is presumed to be entitled to costs on the issues where she was successful. The father did not rebut this presumption.

Factors in Determining Costs

[14] In making this decision, the court considered the factors set out in sub-rule 24(11), which reads as follows:

24(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[15] The case was important for the parties. The issues were not complex or difficult.

[16] The failure of the mother and father to make an offer to settle was unreasonable behaviour.

[17] The counsel for the parents made allegations of unprofessionalism against the other in their costs submissions. The court does not make such a finding based on the material presented to it. All counsel acted reasonably in having these issues heard in a focused manner pursuant to rule 2.

[18] The rates claimed by counsel for the mother ($325 per hour) are very reasonable for a lawyer who was called to the Bar in 1996.

[19] The time spent on the case claimed by the mother in her Bill of Costs (25.4 hours) is also very reasonable. The mother restricted her claim to time spent for the trial step of the case.

[20] The expenses claimed by the mother are reasonable.

[21] The court considered the father's ability to pay costs. This order will permit the father to pay the costs in affordable instalments.

Proportionality Principle

[22] The court has also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

Costs Order

[23] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $4,200, inclusive of fees, disbursements and H.S.T. The father may repay these costs at the rate of $200 per month, starting on October 1, 2014. However, if he is more than 30 days late in making any instalment payment, the entire amount of the arrears shall immediately become due and payable.

Justice S.B. Sherr

Released: August 27, 2014