ONTARIO COURT OF JUSTICE
CITATION: Nabwangu v. Williams, 2019 ONCJ 171
DATE: March 14, 2019
COURT FILE No.: D10945/17
BETWEEN:
JASMINE NABWANGU
Applicant
— AND —
COLIN WILLIAMS
Respondent
Before Justice Roselyn Zisman
Heard by written submissions
Reasons for Judgment released on March 14, 2019
Lisa Evans....................................................................................... counsel for the applicant
Jorge A. Cartay........................................... counsel for the respondent (limited retainer)
Costs Decision
Zisman, J.:
Introduction and background
[1] This is my cost decision arising from a focused trial held on August 10th and September 28th, 2018 with respect to issue of the Respondent’s access to the parties’ child and the amount of child support and special expenses payable by the Respondent.
[2] In my decision released on October 4, 2018, the Respondent was granted specified supervised access to be increased to unsupervised access and for longer periods of time if his access was regular and consistent. As of July 1, 2017 he was ordered to pay child support of $871.00 per month based on an imputed income of $95,000 and to pay $273.00 per month from August 1, 2018 to May 1, 2019 as his proportionate share of the child care expenses and to pay any other special expenses only if agreed upon in writing in advance.
[3] Cost submissions were delayed as counsel for the Applicant did not receive a copy of the decision until December due to some issues with her fax machine.
[4] Cost submissions have now been received by the court on behalf of both parties.
Position of the parties
[5] It is the position of the Applicant that she was successful at trial and is presumed to be entitled to costs.
[6] The Applicant seeks total costs of $18,000 based on two timeframes. Firstly, an amount of $7,455.18 from the commencement of the Application on May 19, 2017 to May 4, 2018 when an offer to settle was made and secondly then from May 5, 2018 in the amount of $11,844.10.
[7] The Applicant basis her claim on the basis that she obtained final orders at the trial which were more favourable than her offer to settle. Counsel further relies on the Respondent’s post trial access and compared it to her offer to settle and submits that her offer to settle was more favourable. It is further submitted that the Respondent acted unreasonably in failing to provide much of the required disclosure.
[8] It is the position of the Respondent that there should be an order that each party bear his or her own costs as success was divided or in the alternative that any order made should not exceed $6,000.
[9] It is submitted that the May 4, 2018 offer to settle was contained in the Applicant’s settlement conference brief and should not be considered for costs purposes and that only the formal offer to settle dated July 11, 2018 should be considered. It is also submitted that the Applicant is not entitled to claim costs for prior case conferences as costs were not reserved.
General principles
[10] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that cost orders are in the discretion of the court.
[11] Family Law Rules (FLR) 24 sets out a framework for awarding costs for family law cases.
[12] In the case of Mattina v. Mattina[^1] the Ontario Court of Appeal has confirmed that modern family cost rules are designed to foster four fundamental purposes:
(1) to partially indemnify successful litigants;
(2) to encourage settlement;
(3) to discourage and sanction inappropriate behaviour by litigants; and
(4) to ensure that cases are dealt with justly pursuant to subrule 2 (2) of the FLR.
[13] I am also mindful that the court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council[^2] the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
[14] FLR 24(1) creates a presumption of costs in favour of the successful party.[^3] Consideration of success is the starting point in determining costs.[^4]
[15] 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. The position each party took at trial should also be examined.[^5]
[16] A cost award is subject to the factors listed in FLR 24(12), the directions set out under FLR. 24(4) (unreasonable conduct), FLR 24(8) (bad faith) and FLR 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party.[^6]
[17] FLR 24(12)[^7] which sets out factors relevant to setting the amount of costs, specifically emphasizes "reasonableness and proportionality" in any costs award.
[18] FLR 24(12) provides as follows:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[19] The FLR only expressly contemplate full recovery costs in specific circumstances that is, where a party has behaved unreasonably, in bad faith or has obtained an order that is more favourable than an offer to settle under FLR 18(14).
[20] FLR 24(5) provides guidance on how to evaluate reasonableness:
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.
[21] Offers to settle play an integral role in saving time and expenses by promoting settlements, focusing parties and often narrowing the issues in dispute. Severable offers to settle or separate offers to settle specific issues are particularly helpful in attempts to settle cases.
[22] The recent case of Beaver and Hill[^8], wherein the Ontario Court of Appeal indicated that offers to settle were not relevant on the issue of costs dealt with a case where there was no compromise and any offer to settle would have been a capitalization. However, in most family law cases there are compromises that can be made. Offers to settle therefore remain important in any consideration of the issue of costs.
[23] The consequences of an offer to settle are set out in FLR 18(14) as follows:
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
Application of legal principles to the facts
[24] As success is the starting point of any determination of costs, the court must determine who the successful party was by comparing the offer to settle and the positions taken at trial with the orders made at trial.
[25] Subrule 17 (23) of the FLR is clear that no brief, evidence or statement made at a settlement conference is to be disclosed unless an agreement is reached at a settlement conference or an order is made and this includes an offer to settle made in a settlement conference brief. Therefore, the Applicant’s offer to settle in her settlement conference brief should not have been disclosed and will not be considered by the court in assessing costs.[^9]
[26] The Applicant served a formal offer to settle dated July 11, 2018. That offer to settle was severable and provided that access between the Respondent and the child shall be as agreed upon by the parties, that the Respondent pay child support as of August 1, 2018 of $600.00 per month based on an imputed income of $64,500 and that the Respondent pay $30 per month for his share of special expenses.
[27] The Applicant sought an order that the Respondent have reasonable access on reasonable notice on the basis that he had not exercised access that had been previously ordered. The Respondent sought unsupervised access on alternating Saturdays for one and half hours. The Respondent did not serve any offer to settle.
[28] With respect to access, the Applicant was not successful as the order provided for specified access to the Respondent for 2 hours with the possibility of unsupervised access for longer periods. I agree with the submissions of Respondent’s counsel that the Applicant cannot rely on post-trial access by the Respondent as a basis for submitting that her offer to settle was therefore more favourable than the order made at trial. Applicant’s counsel filed an affidavit by the Applicant setting out the Respondent’s access since the order was made. I have disregarded that affidavit and find that it should not have been filed in support of a cost submission.
[29] With respect to the quantum of child support, the Applicant was clearly successful and the order made was more favourable than the offer to settle. Child support of $871.00 per month as of July 1, 2017 was ordered whereas the Applicant had offered to settle for $600 per month as of August 1, 2018. Although in submissions counsel for the Applicant requested a retroactive order prior to the commencement of the Application that was not granted as it had not been pleaded, this issue did not require any trial time.
[30] With respect to the issue of the special expenses, the Applicant sought the Respondent pay $30 per month as his share of the child’s swimming and dancing costs that totalled $40 per month. The order provided that the Respondent was not required to pay his share of these expenses as they were not extraordinary. However, based on the evidence that the Applicant was incurring after-hours child care while she attended school, the Respondent was ordered to pay $273 per month from August 1, 2018 up to May 2019. The order the Applicant obtained was clearly more favourable than the offer to settle.
[31] Therefore, overall the Applicant was the successful party and is entitled to costs.
[32] I accept the submissions of Respondent’s counsel that the Applicant should not be entitled to her costs of the previous 2 case conferences and the settlement conference. Pursuant to FLR 24 (10) that was in force at the time of the case conferences and settlement conference, costs for any step in the proceeding were required to be determined at the time or expressly reserved. FLR 24 (11) came into force on July 1, 2018 and as held in several cases[^10] that provision should not be applied retrospectively.
[33] However, this does not preclude a court from considering time spent not related to any specific step in the proceeding[^11] such as, initial interviews, meetings and settlement discussion prior to commencing court proceedings, preparation of pleadings and a financial statement, reviewing a responding parties’ pleadings and telephone discussion and meetings related to issues for trial.
[34] The Applicant acted reasonably throughout the proceedings. Although she was not successful in her claim for access to be as arranged between the parties, her position of this issue was not unreasonable in view of the past history of the Respondent’s access.
[35] The Respondent acted reasonably in consenting to the Applicant having custody and the trial was conducted in a time and cost efficient manner. Although he did not fully comply with all of the disclosure that had been ordered, he did provide a great deal of disclosure. However, much of the disclosure provided was disorganized and resulted in Applicant’s counsel being required to spend a considerable amount of time to examine the disclosure and present it in a coherent manner.
[36] It is conceded that with respect to child support the Applicant obtained a much better result at trial than her offer to settle. The issue of the Applicant’s income for child support purposes consumed most of the preparation and trial time.
[37] However, it is submitted that the Applicant was not successful on her claim for special expenses for extracurricular activities. The Applicant was prepared to accept only $30 per month for these expenses. Although the order at trial did not grant this relief, the Respondent was ordered to pay $273.00 per month from August 1, 2018 to May 1, 2019 as his proportionate share of the child care expenses and to pay any other special expenses only if agreed upon in writing in advance.
[38] The Applicant’s offer to settle was severable on all issues and the Respondent, to his detriment, did not accept any portion of the offer to settle.
[39] Counsel for the Applicant was called to the bar in 2011 and her hourly rate of $200 is reasonable.
[40] With respect to the time spent prior to the July 11, 2018 offer to settle, I have reviewed the bill of costs and I estimate that only 19 hours or $3,800 would be attributable to time spent that is not related to any step in the proceeding.
[41] Further, counsel for the Applicant began to prepare for trial in May 2018. In May and June counsel prepared the Applicant’s trial affidavit, reviewed the Respondent’s affidavit and disclosure brief, prepared her own calculations and summaries and generally prepared for trial including for cross-examination of the Respondent. The time spent of 28.5 hours is reasonable and proportionate to the issues before the court. Counsel’s fees for trial preparation would be $9,500. However, as the offer to settle was made after Applicant’s counsel began her trial preparation there is no basis for full recovery of costs.
[42] As of the July 11, 2018 offer to settle, the Applicant is entitled to full recovery of her costs that include preparation of the Applicant’s reply affidavit, further preparation for trial and attendance at trial on August 10th and September 5, 2018. Costs of $3,800 are sought. I find that full recovery of those costs is appropriate.
[43] The Applicant also claims disbursement costs of $711.78 for the usual fees for process server, photocopying, fax transmissions and a Ministry of Transportation search. These disbursements were necessary and reasonable.
[44] In considering all of these factors, I find that a fair and reasonable cost order and one that is proportionate to the issues involved is $11,500.00.
Order as follows:
The Respondent shall pay to the Applicant her costs fixed at $11,500.00 inclusive of disbursements and applicable taxes.
The order for costs is a support order pursuant section 1 (1) (g) of the Family Responsibility and Support Arrears Enforcements Act, 1996 and shall be enforced by the Family Responsibility Office.
Support Deduction Order to issue.
Counsel for the Applicant to prepare this order and approval by the Respondent is dispensed with.
Released: March 14, 2019
Signed: Justice Roselyn Zisman
[^1]: 2018 ONCA 867 at para. 10 citing with approval Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22 and E.H. v. O.K., 2018 ONCJ 578, at para. 8 and Sambasivam v. Pulendrarajah, 2012 ONCJ 711 at para. 37.
[^2]: (Ontario) (2004), 2004 CanLII 14579 (ON CA), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.); Delellis v. Delellis, 2005 CanLII 36447 (Ont. S.C.J.).
[^3]: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94.
[^4]: Sims-Howarth v. Bilcliffe (2000), 2000 CanLII 22584 (ON SC), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para. 1.
[^5]: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ)
[^6]: Berta v. Berta, ibid.
[^7]: FLR 24(12) was amended in July 2018 .
[^8]: 2018 ONCA 840 at paras. 15-16.
[^9]: Entwistle v. MacArthur, 2007 CanLII 17375 (ON SC), 2007 O.J. No. 1958 (SCJ, Family); Bodynuik v. Bodynuik, [2008] O.J. No. 3047 (SCJ Family).
[^10]: Martin v. Martin, 2019 ONSC 920 at paras. 19 -20 and cases cited therein.
[^11]: Islam v. Rahman, Forlippa v. Khabemba, 2019 ONCJ 170 2007 ONCA 622