Court File and Parties

Ontario Court of Justice

Date: 2016-02-02

Court File No.: Goderich D57-2014

Between:

Aleisha Beatrice Eileen Dale Applicant

— AND —

Wade Lawrence Bell Respondent

Before: Justice Brophy

Heard on: 10 November 2015 and 26 January 2016

Ruling on Costs released: 2 February 2016

Counsel:

• Rosalyn McFarland (Student at Law) for the applicant
• Wade Lawrence Bell on his own behalf

BROPHY J.:

INTRODUCTION

[1] The applicant seeks her costs in this proceeding.

[2] The costs issue was first addressed in court on 10 November 2015. Ms. McFarland acting for the applicant made her submissions. Mr. Bell, the respondent, who was appearing without counsel, asked for an adjournment so that he could speak to a lawyer and perhaps seek representation. That adjournment request was granted and the matter was put over to 26 January 2016 for further submissions generally and for the respondent's response to the claim for costs.

[3] Mr. Bell was cautioned that if he did not have a lawyer representing him on January 26 that he would be required to make his own submissions.

[4] On 26 January 2016 the matter was back in court, but Mr. Bell was in Alberta and attended with permission by telephone. He had not retained a lawyer and represented himself. His submissions were brief and to the point – he didn't think he should have to pay anything on account of costs. He provided no reasons.

PRINCIPLES

[5] The recent case of Berta v. Berta, 2015 ONCA 918, provided a thumbnail description as to the basic principles and procedures relating to the assessment of costs:

[94] Thus, a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: MacDonald v. Magel, at paras. 40 – 43.

[6] Costs then are provided for in Rule 24 of the Family Law Rules. The relevant provisions are as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

(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. O. Reg. 114/99, r. 24 (4).

(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. O. Reg. 114/99, r. 24 (5).

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).

(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. O. Reg. 114/99, r. 24 (8).

(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. O. Reg. 114/99, r. 24 (11).

[7] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, confirmed 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.

DISCUSSION

[8] The applicant is the successful party in this proceeding. The applicant was required to bring the action to obtain proper orders dealing with section 7 expenses and child support generally. The respondent opposed the request for updated and current support orders and generally was oppositional with reference to the legitimate child support concerns of the applicant. In my view this was not a case where there was a mixed result. The applicant was wholly successful. Accordingly the applicant is presumptively entitled to her costs.

[9] The applicant did not behave unreasonably in this proceeding. It was necessary for her to commence the litigation to resolve the child support issue.

[10] There was no cooperation from the respondent in terms of negotiations or compromise. He did not make an Offer to Settle and he exhibited stubbornness and an unwillingness to accept that he was going to have to pay child support in accordance with his means. It is fair to say that the respondent behaved unreasonably.

[11] I would observe however that there is a difference between bad faith and unreasonable behaviour. In this case the behaviour of the respondent was unreasonable - but it did not extend to bad faith. The essence of bad faith is when a person suggests their actions or aim are for one purpose when they are actually aimed at another purpose. It is not done knowingly and intentionally. S.(C.) v. S.(M.), 38 R.F.L. (6th) 315 (Ont. Settlement Conference). That was not the case here. Mr. Bell simply was being stubborn and would not accept his responsibility to pay proper support.

[12] The applicant served an Offer to Settle on the respondent on 1 May 2015. This matter came on for trial on the substantive issues on 6 May 2015 and therefore the Offer was not in strict compliance with Rule 18(14) in terms of timing. However the court can take an Offer to Settle into consideration generally pursuant to Rule 18(16). It is noted that the applicant was attempting to resolve the matter and avoid costs and thus was acting reasonably.

[13] In Rafanan v. Visouvath, [2001] O.J. 4261, the court stated in para. 5 that:

Noncompliance with the specifics of rule 18(14) should be addressed by the court by way of an adjustment in the quantum of an award, not by disallowing that party's actual entitlement to such an order. To do so would, in my view, render the intent of Rule 18(7) and (16) moot.

[14] Accordingly in this case the costs award may be adjusted but not disallowed.

[15] By way of contrast no Offers to Settle were made by the respondent and he did not respond to the Offer presented by the applicant.

[16] After a review of the Offer to Settle, it would appear that the applicant received an award that was marginally better than what the Offer proposed. But only that. The child support amounts were calculated somewhat differently and the section 7 expense contribution had varying percentages over different time periods. In some instances the Offer was more favourable than what was awarded by the court and in some instances it was less favourable, by only by a small margin.

[17] In considering the factors set out in rule 24(11)(a) to (e) I make the following observations:

(a) This matter was of importance to the applicant so that she could receive the proper level of support for the child of the parties.

(b) The factual issues were reasonably complicated although the law was not complex. The problem in this case was the stubbornness of the respondent in terms of recognizing his support obligations. He also proved to be unreliable with reference to the historical information he was providing to the court. It is also noted that on one occasion the respondent actually left the courthouse before the proceeding was complete (this was before the trial) because, as he later reported, he did not want to lose his temper.

(c) The applicant tendered a Bill of Costs setting out a claim for fees and disbursements in the total amount of $6,091.46 at a private retainer rate and $3,562.36 if calculated at the Legal Aid rate.

(d) In reviewing the Bill of Costs it appears that the time expended by the applicant's counsel in this matter was generally reasonable. The time invested by support, student and clerk, is also proper.

(e) The rates are appropriate.

(f) The expenses claimed by applicant's counsel are reasonable.

(g) With respect to other relevant matters:

(i) The court is mindful that the assessing of costs is "not simply a mechanical exercise." See Delellis v. Delellis and Delellis. One of the considerations in an assessment of costs is to fix costs in an amount that is "fair and reasonable" for the unsuccessful party to pay in a particular proceeding. See Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186 (S.C.J.), affirmed 2010 ONCA 326, at para. 4.

(ii) In addition the court necessarily gives consideration to the personal circumstances of the respondent. This is of consequence in terms of the financial means of a party, his or her ability to pay a cost order and the effects of any costs ruling on the parties and the children of the family. See Fyfe v. Jouppien, 2012 ONSC 97 and Crich v. Crich, [2005] O.J. No. 2002.

(iii) In this case the respondent is a labourer engaged in the roofing trade. He has no other support obligations that the court is aware of and has only himself to support. Financial strain does not loom large.

[18] As a final matter it should be noted that the case law is well settled that the receipt of legal aid is not a factor in determining costs. See Ramcharitar v. Ramcharitar, (2002), 62 O.R. (3d) 107 (S.C.J.), at para. 25, Alvarez v. Smith, at para. 17-19 and Holt v. Anderson.

CONCLUSION

[19] In summary, the applicant was wholly successful, made an offer to settle in an attempt to reduce costs, acted reasonably throughout and was opposed by a stubborn respondent. The costs sought are reasonable for a one day trial. The applicant is entitled to significant portion of those costs in that she had no other way to obtain the relief that was her right.

[20] After taking into account all of the above this court is of the view that costs should be paid by the respondent to the applicant fixed in the amount of $5,000.00 payable forthwith.

Released: 2 February 2016

Signed: "Justice Brophy"