Court File and Parties

Date: August 11, 2017

Court File No.: D81454/15

Ontario Court of Justice

Between:

Bibiche Diwampovisa Dinyame

Applicant

- and -

Joel Lukanu

Respondent

Counsel:

• Roger Rowe for the Applicant
• Wendy Yee Kin Shin for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Background

[1] On July 6, 2017, the court heard the applicant's (the mother's) motion for temporary child support for the parties' two children (the children). The court gave oral reasons and ordered the respondent (the father) to pay the mother temporary child support of $346 each month, starting on June 1, 2016; $1,130 for his share of the children's 2016 daycare expenses pursuant to section 7 (section 7 expenses) of the Child Support Guidelines (the guidelines); fixed his support arrears at $5,974 and permitted him to pay these arrears at the rate of $125 each month.

[2] The court gave the parties the opportunity to make written costs submissions. The mother seeks her costs of $7,500 for this motion and for two case conferences held on May 29, 2017 and June 9, 2017, where costs were reserved. The father 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] In her submissions, the mother refers to having made an offer to settle on April 21, 2017. However, no reference was made to the terms of this offer in her submissions and the offer was not provided to the court.

[6] The father made an offer to settle dated June 28, 2017. He proposed paying child support of $346 each month, starting on November 1, 2016. He did not offer to pay past section 7 expenses – only ongoing section 7 expenses. This offer was more favourable to the father than the motion result. The court ordered payment of section 7 expenses for 2016 and started the guidelines table support payments on June 1, 2016. Accordingly, the costs consequences set out in subrule 18(14) do not apply. However, the court will consider that the father made a sincere offer to resolve the motion pursuant to subrule 18(16).

Success on the Motion

[7] The mother had little choice but to bring this motion because the father was not paying her any child support.

[8] The parties consented to the father's income for support purposes at the outset of the motion. They disagreed on the start date for support. The father sought a start date of November 1, 2016 – the mother August 19, 2015, in her notice of motion. The court started support on June 1, 2016. There was divided success on this issue.

[9] The mother sought a contribution to daycare expenses for 2016. The father resisted this. The mother's claim was granted.

[10] Overall, the mother was the more successful party on the motion. The presumption that she is entitled to costs was not rebutted.

Factors in Determining Costs

[11] 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.

Complexity of Issues

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

Reasonableness of Behaviour

[13] The mother should have served a formal offer to settle. Otherwise, she acted reasonably.

Bad Faith Analysis

[14] The mother asked the court to make a finding of bad faith against the father pursuant to subrule 24(8), due to his failure to pay any temporary child support. Subrule 24(8) reads as follows:

Bad Faith

24(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.

[15] Subrule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ). There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S. (M.). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra.

[16] The court finds that the father's behaviour was unreasonable but did not rise to the level of bad faith set out in the case law. He should have been paying temporary child support and his failure to do so has created financial stress for the mother. However, he did make a late effort to settle the motion and agreed to the imputation of his income for support purposes – he isn't actually earning this income.

Case Conference Attendance

[17] The father did not attend the case conference on May 29, 2017. Costs were reserved. The mother is entitled to her costs for this appearance.

[18] Costs of the case conference held on June 9, 2017 were also reserved. The father did not take a reasonable position on the child support issue and the mother will be awarded costs for that appearance.

Counsel's Rates

[19] The rates claimed by counsel for the mother are reasonable.

Time Spent and Proportionality

[20] The materials prepared for the case conference and motion were straight-forward. The issue was not complicated. The hours claimed for this work by the mother in her bill of costs are high.

[21] 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.

Ability to Pay

[22] The court considered the father's ability to pay the costs order. See: MacDonald v. Magel. The court has determined that the father is earning or is capable of earning annual income of $23,000. This is a modest income. However, litigants are responsible for the positions that they take. See: Heuss v. Surkos, 2004 ONCJ 141. While ability to pay costs is a factor to consider, it does not insulate the father from costs liability – particularly when he has acted unreasonably. See: Snih v. Snih.

[23] The father will be given a period of time to pay this costs award.

Costs Order

[24] Taking into account 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 HST. The father may pay the costs at the rate of $150 each month, starting on September 1, 2017. However, if he is more than 30 days late in making any payment, the entire amount of costs shall immediately become due and payable.

Released: August 11, 2017

Justice Stanley Sherr