Court File and Parties

Court File No.: D70769/14 Date: 2015-02-25 Ontario Court of Justice

Between:

MAIKO KAWAMATA Applicant

- and -

VI HUN PHAN Respondent

Counsel: Roger Rowe, for the Applicant Respondent Acting in Person

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

[1] On January 23, 2015, the court released its reasons for decision after a two-day trial. The applicant (the mother) was granted custody of the parties' one-year-old child and given permission to move with the child to Japan. The court made an access order, imputed income to the respondent (the father) and ordered him to pay child support, retroactive to May 1, 2014.

[2] The court gave the parties the opportunity to make written costs submissions. The mother made submissions and seeks costs of $4,258.71. The father made submissions and asked that no costs be ordered.

[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 (the 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. The position each party took at trial should also be examined.

[5] Neither party made an offer to settle. In family law litigation this is unreasonable behaviour. The court repeats its comments made in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 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.

[6] The court must next look at the positions the parties took at trial. The mother was clearly the successful party. She was awarded sole custody of the child, was granted permission to move to Japan and established that the father was deliberately under-employed, leading to the child support order. The father unsuccessfully sought custody of the child, non-removal of the child from Canada and an order deferring his support obligation.

[7] The father did not rebut the presumption that the mother is entitled to costs.

[8] 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.

[9] The case was important for the parties. It was not difficult or complex.

[10] The mother acted reasonably in the litigation, except for her failure to make an offer to settle. The father took unreasonable positions with respect to the custody and support issues. His position regarding the mobility issue was understandable – he wants to be part of his child's life.

[11] The rates and time claimed by counsel for the mother were very reasonable. They were a fraction of what is normally claimed in cases of this nature. The claim reflects sensitivity to the father's limited financial circumstances.

[12] The court also considered that mobility cases are challenging for everyone involved. By their very nature, an approved move will usually compromise a parent's relationship with his or her child. For this reason such cases are difficult to resolve and often need to be decided by the court. It is understandable for parents to contest such requests. See: Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont. SCJ).

[13] The court considered the father's ability to pay costs. See: MacDonald v. Magel. The court imputed only a minimum wage income to him. However, 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. See: Snih v. Snih. This order will permit the father to pay the costs in instalments.

[14] The court order provides that the father may exercise access to the child in Japan. The court is concerned that a prohibitive costs order might deprive the child with an opportunity of in-person contact with the father.

[15] 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.

[16] 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.

[17] The father may repay costs at the rate of $100 per month, starting on April 1, 2015.

Justice S.B. Sherr

Released: February 25, 2015