Court File and Parties
Court File No.: D80882/15 Date: November 30, 2016
Ontario Court of Justice
Between:
Akelia Hylton Applicant
- and -
Travis Pryce Respondent
Counsel: Glenda Perry, for the Applicant Acting in Person, Respondent
Heard: November 29, 2016
Justice: S.B. Sherr
Costs Endorsement
[1] On November 29, 2016, the court delivered oral reasons for decision regarding a trial that took place over two days that dealt with issues of access, incidents of custody, a restraining order and child support.
[2] The court ordered that the respondent (the father) have day access to the parties' 2-year-old child (the child) with exchanges at the Toronto Supervised Access Centre. Several conditions requested by the applicant (the mother) regarding access were ordered. The mother was permitted to obtain government documentation for the child and travel with the child outside of Canada without the father's consent. A final restraining order against the father was made.
[3] At the outset of the hearing, the court struck the father's pleadings with respect to the support issues due to his non-compliance with court-ordered disclosure. The father was only permitted to participate at trial on the parenting issues. The support issues proceeded on an uncontested basis.
[4] The court ordered child support retroactive to September 1, 2014 and imputed income to the father for 2015 and 2016.
[5] The mother seeks her costs of $5,550. The father submits that he cannot afford any costs.
Legal Framework for Costs
[6] 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.
[7] Subrule 24(1) of 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.
[8] Neither party made an offer to settle.
Importance of Offers to Settle
[9] This court has often written that it will usually be unreasonable behaviour to fail to make an offer to settle. The court wrote in paragraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774:
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.
[10] The exception to this principle is when the other party fails to comply with financial disclosure orders, making determination of their income difficult. A party should not have to guess the other party's income and then make an uninformed offer, which if accepted, might lead to an unjust result.
[11] However, this did not prevent the mother from making an offer to settle the parenting issues. That offer should have been made.
Success of the Parties
[12] The mother was clearly the successful party. Most of her parenting requests were granted. She was granted a final restraining order. She was successful in obtaining a retroactive support order and having income imputed to the father. The father was unsuccessful in having access exchanges moved away from the access centre and in his request for holiday access.
[13] The father did not rebut the presumption that the mother is entitled to costs.
Factors in Determining 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. The issues were not complex or difficult.
[16] The mother acted reasonably, except for her failure to make an offer on the parenting issues.
[17] The father's behaviour was unreasonable. He failed to comply with disclosure orders that led to his pleadings being struck on the support issues. He failed to provide a "will say" statement as required by the court. He unnecessarily added to the cost of this case. Costs consequences follow when a litigant acts in this manner.
[18] The rates and time spent on the case by the mother's counsel were reasonable and proportionate.
Ability to Pay
[19] The court considered the father's ability to pay the costs order. See: MacDonald v. Magel. The court finds that he has the ability to pay the costs that will be awarded. The father traveled to Mexico during the case. He drives a Mercedes-Benz. He also has a terrible child support payment record.
Proportionality of Costs
[20] 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.
Costs Order
[21] 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 $5,000, inclusive of fees, disbursements and H.S.T. The costs are payable within 45 days.
Released: November 30, 2016
Justice S.B. Sherr