Court File and Parties
Court File No.: 346/12 Date: 2015-05-14
Ontario Court of Justice
Re: Sara Mason – Applicant And: Bjorn Blanchard – Respondent
Before: Justice S. O'Connell
Counsel: Dani Frodis/Samantha Dimeno, for the Applicant Bjorn Blanchard, self-represented
Costs Endorsement
Introduction
[1] Ms. Mason seeks her costs of the motion in this matter on a full recovery basis in the amount of $10,518.51, or alternatively $8,954.82. She relies upon her full success at the motion for summary judgment in this matter and her offer to settle served which she submits was more favourable to Mr. Blanchard than the outcome of the motion.
[2] Ms. Mason served her costs submissions, including the bill of costs and a copy of her offer to settle shortly after I released my decision, in accordance with the timelines provided. To date, I have not received any response from Mr. Blanchard to the costs submissions received from Ms. Mason. His response should have been served and filed by February of 2015.
The Law and Governing Principles
[3] Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[4] Rule 24(11) provides a further list of factors that a court must consider when setting the amount of costs:
(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.
O. Reg. 114/99, r. 24(11).
[5] Rule 18(14) and 18(16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following:
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.
18(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
O. Reg. 114/99, r. 18(14) and (16).
[6] In Serra v. Serra, 2009 ONCA 395, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
[7] Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M., held that while the Rules have not completely removed a judge's discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.
[8] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher et al. v. Public Accountants Council for the Province of Ontario, the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
[9] If a successful party has behaved unreasonably "in relation to the issues from the time they arose (Rule 24(5))," then pursuant to Rule 24(4), they may be "deprived of all or part of the [their] costs or ordered to pay all or part of the unsuccessful party's costs." Behaviour under Rule 24(5) is not restricted to behaviour associated with offers to settle. See Family Law Rules, Rule 24(4), (5) and 11(b); Lawson v. Lawson, 2004 CarswellOnt 3154, para. 44.
[10] Finally, in deciding the amount of costs to be paid, I must also consider clause 24(11)(f) which requires the court to consider any other relevant matter, including the ability to pay costs. See Biant v. Sagoo. In C.A.M. v. D.P., Justice Rosenberg for the Ontario Court of Appeal states the following:
I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth at para. 4, that the "Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (S.C.J.) at para. 11.
Analysis
[11] Ms. Mason was entirely successful on the motion for summary judgment.
[12] The first appearance in this matter was set for March 17, 2014 and the case conference scheduled for April 28, 2014. The parties attended the case conference and an order was made on consent at the case conference which required Mr. Blanchard to provide certain disclosure within 30 days. Mr. Blanchard was also granted leave to amend his motion to change.
[13] Mr. Blanchard delivered an affidavit on May 27, 2014 purporting to comply with the disclosure order. His disclosure included correspondence from his former income source, a general contractor, indicating that the company had issued no cheques to Mr. Blanchard or his company, Overboard Construction, since November 2013. He also provided correspondence from Mr. Edward Barlow, his new alleged employer at Dextar Inc. and pay stubs from Dextar as if he was an employee of that company.
[14] As indicated in my reasons for decision in this matter, the disclosure provided by Mr. Blanchard clearly suggested that Mr. Blanchard was an employee of Dextar. In fact, this was not the case. Mr. Blanchard knowingly and purposefully misled Ms. Mason and the court regarding his income source. It was confirmed through the Dextar Corporation profile report that Mr. Blanchard incorporated Dextar and was the first director and administrator of the Corporation. Moreover, the corporate head office of Dextar was Mr. Blanchard's home address.
[15] On June 4, 2014, Ms. Mason served Mr. Blanchard with an offer to settle the issue of child support. The offer provided that Mr. Blanchard would withdraw his motion to change the child support, would pay the arrears of child support under the final order of Justice Zisman, the final order would remain in effect unchanged, and if the offer was accepted by June 6, 2014, costs would be fixed in the amount of $1,000 payable to Ms. Mason and enforced by the Family Responsibility Office.
[16] Mr. Blanchard did not serve an offer to settle.
[17] On July 24, 2014, the parties resolved the issues pertaining to access and travel on consent. Arguments with respect to the motion for summary judgment regarding child support were completed on September 17, 2014.
[18] My written decision was released on December 16, 2014. Mr. Blanchard's motion to change the final order was dismissed in its entirety.
[19] Mr. Blanchard brought the motion to change while in breach of the child support provisions of the Final Order of Justice Zisman and the cost orders of Justice Zisman. He sought to seek relief from the court while he was in contempt of those orders. According to the cost submissions provided by Ms. Mason for this motion, Mr. Blanchard continues to be in significant arrears of child support.
[20] In my view having considered all of the circumstances in this case including the bill of costs, the offer to settle and the factors to be considered when deciding the quantum of costs under Rule 24, Ms. Mason should be entitled to her costs of the motion in the amount of $7,500.00, inclusive of HST and disbursements.
[21] In light of Mr. Blanchard's history and pattern of failing to comply with court orders, and given that this motion dealt entirely with child support, the order for costs shall be enforced as if it were a support order by the Family Responsibility Office. See Sordi v. Sordi, 2011 ONCA 665.
Order
[22] Accordingly, I make the following Order:
There will be an order for costs payable by Mr. Blanchard to Ms. Mason in the amount of $7,500.00, inclusive of taxes and disbursements, payable no later than 90 days from the day of this order;
This order should be enforceable as part of a support order by the Family Responsibility Office.
Support Deduction Order to issue.
S. O'Connell
Date: May 14, 2015