Court File and Parties

Ontario Court of Justice

Date: April 3, 2018

Court File No.: 339/01

Between:

Lisa Michelle Antoinette Knight Applicant

— AND —

Jake Edward Rowntree Respondent

Costs Endorsement Upon Written Submissions

Released on April 3, 2018

Andrea S. Clarke — counsel for Lisa Michelle Antoinette Knight

David Cameletti — counsel for Jake Edward Rowntree

CASPERS, J.:

1: INTRODUCTION

[1] The motions to change brought by Lisa Michelle Antoinette Knight ("Ms. Knight") and Jake Edward Rowntree ("Mr. Rowntree"), at their essence, deal with the singular issue of child support, prospective and retroactive, for their daughter, Taylor, born 1999 ("Taylor"), currently aged 18 years.

[2] By way of context, Ms. Knight and Mr. Rowntree entered into minutes of settlement on November 22, 2001 whereby they agreed to share joint custody of their then two year old daughter, Taylor. The primary residence of Taylor was to remain with Ms. Knight. Mr. Rowntree had access every Saturday from 12 noon to Sunday at 12 noon and other liberal and generous access as might be arranged between the parties based on his employment schedule. Arrears of child support were fixed at $300.00, to be discharged at the rate of $50.00 per month. Ongoing child support was ordered payable in the amount of $389.00 per month commencing December 1, 2001 commensurate with a confirmed income for Mr. Rowntree of $45,248.00.

2: POSITION OF THE PARTIES

[3] In their respective motions to change, both parties sought to vary the November 22, 2001, order with respect to custody and access and child support given that Taylor had relocated from the residence of Ms. Knight to Mr. Rowntree on March 1, 2017.

[4] Mr. Rowntree sought formal acknowledgement that Taylor's primary residence was now with him and requested that access between Taylor and Ms. Knight occur "at the discretion of the child." He asked that his child support, which he has consistently paid since December 1, 2001 in the amount of $389.00 per month, terminate effective March 1, 2017 and that he be reimbursed for any overpayment of child support paid to Ms. Knight since that date. He further requested child support from Ms. Knight from March, 2017 forward in accordance with her income and the Child Support Guidelines ("Guidelines").

[5] Ms. Knight asked the court to consider an order for shared custody with access by both parents to Taylor "subject to the wishes of the child." She also requested ongoing child support, a contribution towards s.7 post-secondary costs for Taylor as well as, perhaps most significantly, a readjustment of child support and s.7 expenses in accordance with Mr. Rowntree's fluctuating income and the Guidelines retroactive to 2003 in the total amount of $43,601.11.

3: DECISION FOLLOWING HEARING

Custody and Access

[6] I determined that Taylor, at the age of 18 years and not residing with either parent, ought not to attract a variation of the prevailing joint/shared custody order. Both parents agreed with this assessment. Taylor has a meaningful relationship with both Mr. Rowntree and Ms. Knight. There is no reason to suggest that this will change. Her contact with both parents takes place as she wishes. Therefore neither party was either successful or unsuccessful on this issue as it was not the subject of argument.

Prospective Child Support and s. 7 Expenses

[7] Ms. Knight requested prospective child support. Mr. Rowntree argued that Taylor was no longer a dependent. Ultimately I made no order for ongoing support as requested by Ms. Knight as Taylor is 18 years of age, not attending school, not residing with either parent currently and is working part-time. Ms. Knight was therefore unsuccessful with respect to this issue.

[8] I made no order with respect to ongoing s.7 post-secondary expenses for Taylor as requested by Ms. Knight as no specifics were provided with respect to when, where and if Taylor would be attending a post-secondary institution, what any associated costs there might be and what contribution Taylor herself might make to her post-secondary studies. On this issue, Ms. Knight was again unsuccessful and the preponderance of success was with Mr. Rowntree.

Retroactive Child Support

[9] Ms. Knight sought a retroactive adjustment of child support back to 2003 based on Mr. Rowntree's steady increase in income over the last 15 years. She argued that she had never received any financial disclosure upon which she might undertake a reconsideration of Mr. Rowntree's child support obligation. Mr. Rowntree submitted that Ms. Knight never requested a child support adjustment. In her evidence, Ms. Knight acknowledged this. No motion to change child support and address s.7 expenses was brought by Ms. Knight until she responded to Mr. Rowntree's request to vary the prevailing custody and child support arrangements for Taylor. Only then did Ms. Knight reach back into the past. Had Mr. Rowntree not so precipitously plunged into litigation this issue or retroactivity might never have surfaced.

[10] Ultimately, retroactive Guideline child support payable by Mr. Rowntree to Ms. Knight was restricted to a three-year claim covering the period 2014 to 2017 only. In addition I ordered a contribution towards a portion of daycare, orthodontic and medical expenses for Taylor. Claims made for a number of other s.7 expenses such as those for private primary/secondary school and extracurricular activities, were disallowed. Ms. Knight was partially successful in that there was a readjustment of child support and some s. 7 expenses retroactively for the period 2014-2017. Mr. Rowntree opposed any child support readjustment but on that issue he was unsuccessful. Therefore success was divided.

[11] Mr. Rowntree sought a termination of child support effective March 1, 2017. This order was made. He was given credit for his monthly payments of $389.00 from March 1, 2017 until December 31, 2017 as he had requested. He was also awarded child support from Ms. Knight in accordance with the Guidelines for the period of time when Taylor was with him from March 1, 2017 until mid-January, 2018. Both the credit for monthly payments and the notional child support for which Ms. Knight was responsible, were applied towards the three year retroactive child support claim for which Mr. Rowntree was ultimately found to be responsible.

4: POSITION OF THE PARTIES ON THE ISSUE OF COSTS

[12] I released my decision on February 22, 2018 and I invited both parties to file written costs submissions which they have done.

[13] Ms. Knight seeks costs in the amount of $1,500.00. Her claim is based on the speed with which Mr. Rowntree commenced his motion to change after Taylor moved into his residence in March, 2017 and, perhaps more significantly, the fact that although Mr. Rowntree had consistently paid his child support in the ordered amount of $389.00 per month since December 1, 2001, he had never provided financial disclosure upon which ongoing child support might be revaluated. Furthermore, it was submitted that Mr. Rowntree has never voluntarily contributed to any of Taylor's s. 7 expenses. For these reasons, Ms. Knight takes the position that her proceeding had merit and that the modest sum of $1,500.00 which she claims is reasonable and significantly less than the cumulative amount of her account as reflected in the Bill of Costs.

[14] Mr. Rowntree claims costs of $5,497.45. He submits that he conducted himself reasonably throughout the litigation, has always paid his child support in accordance with the prevailing order, was not required by court order to provide financial disclosure, was never formally requested to increase his monthly payments, was never requested to contribute to s. 7 expenses and his consent was never given to the incurring of any s. 7 expenses. He argues the global claim made by Ms. Knight with respect to retroactivity was spurious and that he was much more successful than Ms. Knight in terms of the ultimate outcome.

5: GENERAL COST PRINCIPLES

Purpose of Costs Awards

[15] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal succinctly confirmed that costs rules are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation;
2. to encourage settlement; and
3. to discourage and sanction inappropriate behaviour by litigants.

[16] Subrule 2 (2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. This provision needs to be read in conjunction with rule 24. [See: Sambasivam v. Pulendrarajah, 2012 ONCJ 711.]

[17] There are always costs to litigation – emotionally, psychologically and financially. The right to bring or respond to a case does not grant a party the license to litigate in a manner that ignores the consequence of that litigation. Justice Carole Curtis emphasized this point in Sabo v. Sabo, [2013] O.J. No. 4628 (O.C.J.) as follows:

"Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation."

[18] As noted by Justice Sherr of this court in L.W.-A. v. J.C and D.W.A., 2017 ONCJ 825, at paragraph 5:

"Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002 S.C.C., supra, paragraph 25. When awarded on a full recovery scale, costs can serve to express the court's disapproval of unreasonable conduct during the litigation. See: Sabo v. Sabo, 2013 ONCJ 545, per Justice Carole Curtis."

Rule 24 Family Law Rules

[19] Subrule 24(1) 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.

[20] In Mantella v. Mantella, 2005 O.J. No. 3170 (O.S.C.J.) at paragraph 8, Justice Deena Baltman of the Superior Court of Justice wrote:

"Rule 24 of the Family Law Rules presumes that the successful party will, barring unusual circumstances, recover at least substantial indemnity of their costs. There remains, however, significant discretion to award the amount of costs that appear just in all the circumstances, particularly after taking into account the various factors set out in Rule 24(11)."

Offers to Settle

[21] Any determination of costs must take into account offers to settle and how they compare to the final resolution. In Serra, supra, the Ontario Court of Appeal emphasized the important obligation imposed upon litigants to attempt to settle emergent issues that arise from the very beginning of a family law case. In doing so, it adopted the following statement by Spence J. in Husein v. Chatoor, 2005 ONCJ 487, at paragraph 30:

"[P]arties have an obligation to begin to assess their respective cases at the outset of the litigation – even before the litigation commences – and to make all reasonable efforts to settle. Legal fees can create enormous financial burdens for litigants and it behooves neither party simply to sit back and to roll the dice while those fees continue to mount."

[22] In this case neither party appears to have presented a formal offer to settle. What I do have before me is an offer attached to a settlement conference brief from Mr. Rowntree appended to the submissions of Ms. Knight. Beyond that there is no evidence that the parties attempted, in a robust fashion, to resolve the outstanding issues by way of carefully crafted offers to settle.

6: APPLICATION OF LEGAL PRINCIPLES TO THE FACTS

[23] The remaining issues to be addressed include (a) the scale on which costs are awarded, and (b) the quantum of costs.

Scale of Costs

[24] There is nothing in the Family Law Rules ("Rules") that dictates the scale upon which costs are ordered.

[25] Subrule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Overall while Mr. Rowntree was not entirely successful, I conclude nevertheless that he unquestionably enjoyed the preponderance of success and was the more "successful party" based on the ultimate resolution achieved. As such there is a presumption that he is entitled to all or a portion of his costs of his "case."

[26] In making this decision, the court considered the factors set out in subrule 24 (11) of the Rules, 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.

(a) Importance

[27] The case was important for the parties. It was moderately complex with respect to the issue of the retroactive claim.

(b) Reasonableness

[28] Despite the fact that his daughter was living with him after March 1, 2017, Mr. Rowntree continued to pay his child support and proceeded to bring a motion to change which was the appropriate course of action.

[29] While there was no specific provision in the order requiring him to do so, Mr. Rowntree was, without question, under an obligation to disclose any change of income if asked. Full and detailed financial disclosure is a cornerstone of family law. However, in this case, Ms. Knight brought no formal variation prior to responding to the current proceeding and could provide no evidence to show that she actually made any request for financial disclosure in the face of Mr. Rowntree's regular payments. I therefore cannot find that there was unreasonable behaviour on the part of Mr. Rowntree.

[30] Once Taylor moved to reside with her father, Ms. Knight neither agreed to terminate Mr. Rowntree's child support obligation nor did she offer to pay child support herself in accordance with the Guidelines. She was content to receive the $389.00 per month knowing that she had no claim to entitlement.

[31] Ms. Knight sought a retroactive adjustment of child support and s. 7 expenses to 2003. This was an unreasonable request which she pursued vigorously to the date of the hearing. She could not provide details of any prior demand for disclosure. She did not have detailed confirmation of consent given or receipts provided for several of the retroactive s.7 expenses claimed.

Quantum of Costs Awarded

(c), (d) and (e) Lawyer's Rates, Time Spent and Expenses

[32] Both the Rules and the case law recognize that the court has discretion over the quantum of costs to be paid. Section 131 of the Courts of Justice Act confirms that:

"the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid."

[33] Ms. Clarke and Mr. Cameletti have each filed Bills of Costs. The rates claimed by counsel for a one day hearing are reasonable given their years of experience. See: Boucher et al. v. Public Accountants Council for the Province of Ontario.

(f) Other Relevant Factors

[34] In the offer to settle attached to his settlement conference brief, Mr. Rowntree requests that Ms. Knight pay to him child support pursuant to the Guidelines, that his child support be terminated, that mother's claim be dismissed and that each party be responsible for his or her own costs. He was successful on the issues of payment of child support by Ms. Knight from March 1, 2017 forward and in his request for a termination of his child support obligation effective the same date. The balance of Ms. Knight's claim was not dismissed. Instead she was granted a three year adjustment of child support as well as an adjustment of some of her s.7 expenses. She was not successful with respect to her 15 year retroactive claim. Therefore, success was divided.

[35] Finally, the court has considered the respective financial positions of the parties [See: MacDonald v. Magel.]. At trial Mr. Rowntree's projected income for 2017 was $56,448.00. Ms. Knight's projected 2017 income was $48,495.00. Both parties have the capacity to discharge any costs obligation.

[36] Ultimately costs are in the discretion of the court. Considering all of the circumstances in this case, it is appropriate for the court to exercise its discretion in ordering that costs be ordered payable by Ms. Knight to Mr. Rowntree in the amount of $4,000.00.

7: ORDER

[37] In summary, I order as follows:

1. Lisa Michelle Antoinette Knight shall pay to Jake Edward Rowntree his costs of the motion to change in the amount of $4,000.00 for all fees, disbursements, and H.S.T. The costs are to be discharged within 120 days.

Released: April 3, 2018

Signed: Justice Jane Caspers