Court File and Parties
Court File No.: D57036/12 Date: 2015-04-16
Ontario Court of Justice
Between:
RICARDO GONZALEZ Acting in Person APPLICANT
- and -
CINDY GARCIA RESPONDENT
Counsel: Patricia Gan, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Background
[1] On March 18, 2015, the court released its reasons for decision after a half-day trial about child support. The applicant (the father) was ordered to pay child support to the respondent (the mother) in the sum of $384 per month, retroactive to January 1, 2014. The child support was based on an annual imputed income to the father of $42,500.
[2] The court gave the parties the opportunity to make written costs submissions. The mother made submissions and seeks her full recovery costs of $4,212.20. The father did not make any submissions.
Legal Framework for Costs
[3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 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.
[4] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. 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. See: Lawson v. Lawson.
Settlement Offer Analysis
[5] Subrule 18(14) reads as follows:
Costs Consequences of Failure to Accept Offer
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[6] The mother made an offer to settle dated March 12, 2015. The father did not make an offer to settle.
[7] The mother's offer to settle was more favourable to the father than the final result. However, for subrule 18(14) to apply, all of the relevant conditions within the subrule must be met. Paragraph 2 of subrule 18(14) requires the offer to be made at least seven days before the trial. The mother served her offer only four days before the trial. Accordingly, the costs consequences of subrule 18(14) do not apply.
[8] The court may still consider the mother's offer pursuant to subrule 18(16).
[9] The father should have accepted the mother's offer to settle.
Reasonableness of Conduct
[10] The father took the position at trial that he had no ability to pay child support. This was an unreasonable position.
[11] The father did not rebut the presumption that the mother is entitled to costs.
Factors in Setting Costs
[12] In making this decision, the court also 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.
[13] The case was important for the parties. It was not complex or difficult.
[14] The mother acted reasonably in the litigation. The father did not. He failed to comply with financial disclosure orders in a timely manner. His financial disclosure remained incomplete at trial. He did not make an effort to reasonably settle the case.
[15] The rates claimed by the mother's counsel were reasonable.
[16] The mother claimed time for previous steps in the case. Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487. The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.
[17] The mother claimed time for correspondence, meetings, reviewing disclosure and preparing pleadings. This is a legitimate submission at the trial stage as this is work that is either not attributable to a discrete step in the case or is attributable to multiple steps in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778 and my comments in Kardaras v. Kardaras, 2008 ONCJ 616.
Ability to Pay and Proportionality
[18] The court considered the mother's ability to pay costs. See: MacDonald v. Magel. The court finds that the father has the ability to pay this costs award.
[19] The court has also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. 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 Award
[20] 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 $3,600, inclusive of fees, disbursements and H.S.T. The costs may be repaid at the rate of $200 per month, starting on May 1, 2015. However, if the father is more than 20 days late in making any costs payment, the entire amount shall immediately become due and payable.
Justice S.B. Sherr
Released: April 16, 2015