Court File and Parties

Date: 2016-12-12

Court File No.: 286/06 (Sarnia)

Ontario Court of Justice

Applicant Counsel: Amanda Japp (LeBlanc), Maureen Cannon

Respondent: Clayton Rennie in person

Heard: In chambers

Costs Endorsement

Background

[1] On April 23, 2007 Justice Austin granted an order, as between the parties, which provided for custody, access and child support (the "original Order").

[2] The Respondent, as moving party, brought a Motion to Change the original Order. He sought joint custody of the parties' children, access to them and a change in child support. The Motion to Change was issued June 9, 2014.

[3] On December 11, 2015 Justice McFadyen made a final order that dealt with the issues of custody and access that were raised on the Motion to Change. Paragraph 11 of that order "preserved" the Applicant's claim for costs of the Motion to Change.

[4] A trial was directed on the issue of child support.

[5] Following a one day trial on the Motion to Change the child support order, Reasons for Judgment were released on October 21, 2016.

[6] The Respondent's child support obligations were addressed both retroactively and on an ongoing basis. Arrears of child support owing by the father for the period April 23, 2007 to December 31, 2011 were determined to be $10,793.00. This was agreed to by the parties. The support owing for the period January 1, 2012 until September 30, 2016 was calculated on the basis of income imputed to the Respondent pursuant to the original Order made by Justice Austin on April 23, 2007. The amount of imputed income was $21,700.00. Ongoing child support is to be based upon imputed income to the Respondent of $22,500.00 which approximates income at the minimum wage for full-time employment. A payment schedule for arrears was ordered as was the requirement that the Respondent contribute to special expenses that had been incurred. Written cost submissions were requested and provided by the parties.

[7] The Applicant seeks costs in the amount of $9,038.60, for both the custody and access part of the Motion to Change and the support part.

[8] The Respondent submits that he does not have the financial ability to pay any amount of costs.

Legal Considerations

[9] In Serra v. Serra, 2009 ONCA 395, the Court held that:

Modern costs rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants for the cost of litigation; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants.

[10] More recently, the Ontario Court of Appeal in Berta v. Berta, 2015 ONCA 918, held that a successful party in a family law case is presumptively entitled to full recovery costs. An award of costs on this basis, however, is subject to the factors listed in sub-rule 24(11), the directions set out in sub-rule 24(8) (bad faith) and sub-rule 18(14) (offers to settle) and the reasonableness of the costs sought by the successful party.

[11] Rule 24(1) of the Family Law Rules presumptively entitles a successful party to his or her costs.

[12] Rule 24(5) provides that in dealing with whether a party has behaved reasonably or unreasonably, the court shall examine:

a) the parties' 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.

[13] Rule 24(11) states that 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 parties' behaviour in the case;

c) the lawyers' rates;

d) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of orders;

e) expenses properly paid or payable; and

f) any other relevant matter.

[14] The proper determination of costs in family law cases requires the court to reflect on many factors. It is more than a simple mathematical exercise: Delellis v. Delellis.

[15] In Boucher v. Public Accountants Council for the Province of Ontario, 71 OR (3d) 291 (Ont.CA), the court held that in assessing costs the award must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular case.

[16] Two other principles respecting the award of costs in family matters that the court must bear in mind, in this case, are ability to pay and the relative means of each party to bear his or her own costs: Harrington v. Harrington, 2009 ONCA 190 and Drygala v. Pauli.

Application of Legal Considerations

Custody and Access

[17] The issues of custody and access were finalized by the order of Justice McFadyen dated December 11, 2015.

[18] In the Respondent's Motion to Change, he sought joint custody of the children and a police assist order on the basis of alleged alienation by the Applicant. He was not successful.

[19] The Applicant was successful in obtaining an order that she maintain sole custody of the children and that the Respondent have access to one child only in accordance with that child's wishes. The Applicant was also successful in her claim that access to the parties' other child be in accordance with his wishes.

[20] The Applicant delivered an offer to settle which was more favourable to the Respondent than the order granted.

[21] I accept the Applicant's submissions that the issues before the court "were of some complexity" as she had to deal the allegation of alienation made by the Respondent.

Child Support

Importance, Complexity or Difficulty of the Issues

[22] The issue of child support was of considerable importance to the parties. The Respondent's obligations in respect of child support were a matter of constant concern to the parties. The Respondent sought an order that was consistent with his actual financial circumstances. The Applicant needed support for her children.

[23] The legal issues raised in this case were of some complexity in that the court was required to determine what amount of income, if any, should be imputed to the Respondent arising from (a) his claim that economic circumstances beyond his control affected his income earning ability; and (b) his unresolved medical conditions.

[24] This claim was factually complex because of the length of time the Respondent's support obligations and his income needed to be addressed.

The Reasonableness or Unreasonableness of Each Party's Behaviour in This Case

[25] Neither party produced an offer to settle the issue of child support that had been served.

[26] During the course of this proceeding the Respondent failed to comply with disclosure orders. He has had costs awarded against him during this proceeding for that reason.

[27] The Respondent had the obligation of keeping the Applicant informed of his income on an annual basis. He did not do so until this case was started.

Lawyers' Rates

[28] Counsel for the Applicant is a lawyer with two years' experience and claimed an hourly rate of $175.00 for her first year in practice, and $215.00 for her second year. I find that these rates are reasonable.

The Time Properly Spent on This Case

[29] The Applicant's bill of costs discloses that counsel spent 37.4 hours on this case. Based on the bill of costs provided I am not able to determine whether time spent and claimed includes steps in the case for which costs have already been awarded, or, for which no cost orders were made.

[30] The disbursements claimed are reasonable, however, as with respect to the time spent, I cannot determine whether the disbursements are in respect of costs already ordered or for which no cost order was made.

Other Relevant Matters

[31] I take into account the Respondent's financial circumstances. He has had income imputed to him. There are a significant amount of arrears that he now owes and must be repaid at a monthly rate. If he fails to do so, the entire amount of arrears will become due.

[32] The Applicant's financial circumstances have much improved since the making of the original order.

[33] I also take into account that the parties agreed on the amount of arrears that were owing in respect of the period beginning in 2007 and ending in 2011. Beginning in 2012 the Respondent sought a child support order based on his actual income as disclosed in his income tax returns. The Applicant sought child support based upon imputed income of $39,706.00. The court did not accept either of these submissions.

[34] It is of considerable importance in the determination of costs in this case that the Respondent, who sought an order reducing his child support obligation, did not provide timely or complete financial disclosure. He was given many opportunities to do so. This type of behaviour in the course of litigation cannot be condoned by the court.

Conclusion

[35] In considering all of these factors, I find that the Applicant is entitled to partial recovery of her costs as she acted reasonably through this litigation, save for not delivering an offer in relation to support, was more successful than the Respondent, and it is important to sanction the unreasonable behaviour of the Respondent in not providing disclosure.

[36] I find that a fair and reasonable cost order that is proportionate to the issues involved and in all the circumstances is $5,000.00 inclusive of fees, disbursements and all applicable taxes.

Original signed and released

Justice Barry Tobin

Date released: December 12, 2016