Court File and Parties
Court File No.: D51981/10 Date: 2015-08-20
Ontario Court of Justice
Between:
V.D. Applicant
- and -
A.L. Respondent
Counsel:
- Natalia Denchik, for the Applicant
- Irving I. Frisch, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
Background and Orders
[1] The court heard motions to change brought by both parties on June 25, 2015. The court ordered that the parties have joint custody of their seven-year-old son, with an equal-time sharing schedule. The respondent (the father) was ordered to pay the mother ongoing child support of $457 per month. Child support arrears were fixed at $5,088, to be repaid at the rate of $250 per month by the father.
[2] The court gave the parties the opportunity to make costs submissions. The father made submissions and seeks costs of $15,205.22. The applicant (the mother) asks that no costs be paid.
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 Offers
[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- The offer does not expire and is not withdrawn before the hearing starts.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 father made an offer to settle dated June 16, 2015. The offer was not as favourable as the final result. While the parenting portion of the offer was as favourable as the final result, the father proposed to pay ongoing child support of $420 per month and no amount for arrears prior to the date of the offer. The offer was not severable.
[7] The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if subrule 18(14) does not apply, when exercising its discretion over costs (subrule 18(16)). The court considered that the father's parenting offer was very reasonable.
[8] The mother made two offers to settle. Neither offer was as favourable as the final order. The mother essentially offered to maintain the existing court order. She did not make an offer on the support issue.
Success on the Issues
[9] At the hearing, the father sought joint custody and a shared parenting arrangement. The mother sought sole custody with no change to the existing parenting schedule.
[10] The father was clearly the successful party on the parenting issues, based on the offers to settle and the positions taken at the hearing.
[11] At the hearing, the father proposed to pay only ongoing child support of $420 per month. The mother asked that the father pay the Child Support Guidelines table amount of $580 per month, based on the father's increased income, recalculated from January 1, 2014.
[12] The court ordered the father to pay the table amount of child support from January 1, 2014 until June 30, 2015. His support arrears were fixed at $5,088. The court ordered the father to pay child support to the mother of $457 per month, based on a section 9 guidelines calculation, starting on September 1, 2015. Overall, the mother was more successful on the support issue.
[13] Where there are a number of issues before the court, it can have regard to the dominant issue. See: Firth v. Allerton, [2013] O.J. No. 3992 (S.C.J.); Mondino v. Mondino, 2014 ONSC 1102. The parenting issue was the dominant issue in this case.
Factors in Setting Costs
[14] In making this decision, the court considered the factors set out in subrule 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. It was not complex or difficult.
[16] The parties made several complaints about the other's behaviour in their costs submissions. This was the behaviour that was reviewed by the court in arriving at its decision. The litigation behaviour of the parties was reasonable.
[17] The rates claimed by the father's lawyer are reasonable.
[18] A review of the father's lawyer's bill of costs indicates that some time is being claimed for prior steps in the case where costs were not reserved. 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 court 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. However, a party is entitled to claim time spent for meetings with the client and reviewing and preparing pleadings and financial statements as this is time not attributable to any one step in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778.
[19] The parties had brought temporary parenting motions that were heard on November 14, 2014. The motions were dismissed and a referral was made to the Office of the Children's Lawyer. Costs of the motions were fixed in the sum of $3,000, in the cause.
[20] A review of the time claimed by the father's counsel appeared to be high. The mother submitted a bill of costs of $9,704.
Ability to Pay and Proportionality
[21] The court considered the mother's ability to pay costs. See: MacDonald v. Magel. A party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs. The court recognizes that the mother is of modest means and will have difficulty paying a costs order. However, family law litigants are responsible for and accountable for the positions they take in the litigation. See: Heuss v. Surkos, 2004 ONCJ 141.
[22] The court 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.
[23] The mother has made the request that any costs award against her be offset against the father's support arrears. The court is not prepared to do this as the support arrears were assigned by the mother to the City of Toronto.
Costs Order
[24] Taking into account all of these considerations, an order shall go as follows:
a) The mother shall pay the father's costs fixed in the amount of $6,000, inclusive of fees, disbursements and H.S.T.
b) The mother may repay the costs at the rate of $200 per month, starting on October 1, 2015.
Justice S.B. Sherr
Released: August 20, 2015