Court File and Parties

Court File No.: FS-08-340449
Date: 2012/01/18
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Guo Jiang, Applicant

AND:

Guoping Jiang, Respondent

BEFORE: Harvison Young J.

COUNSEL:
Jason Isenberg , for the Applicant
Guoping Jiang , on his own behalf

HEARD: March 15, 16, 17, 18, 19, March 25, May 3, 2011

COSTS ENDORSEMENT

1In Reasons for Judgment which were released on September 14, 2011, I requested written submissions from the parties with respect to costs. I have received and reviewed submissions from both parties.

2The trial in this matter took approximately 7 days, although it was set down to take 3-4 days.

3In their respective submissions, both parties acknowledge that success was somewhat mixed. Ms. Jiang, however, submits that she was, overall, more successful and is therefore presumptively entitled to her costs. She also submits that the combination of the husband’s conduct which was unreasonable and effectively lengthened the trial in a number of respects, and the fact that she tried to settle the issues in advance of the trial while he did not, as well as the overall level of her success at trial should entitle her to her party and party costs in the amount of $47,642.54.

4Mr. Jiang submits that in light of the divided success at the trial, no costs should be ordered. In particular, he argues that success was divided on the most contentious and significant issue between the parties, that of ongoing spousal support. He further argued that had he incurred the expense of legal counsel at trial, he would be seeking costs.

5Costs in family law proceedings are governed by Rule 24 of the Family Law Rules , of which the most pertinent parts provide as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1) .

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4) .

(5) 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. O. Reg. 114/99, r. 24 (5) .

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6) .

6It will be helpful to itemize the issues for trial and the relative success and other considerations in relation to each issue.

Equalization

7As both parties recognize in their submissions, the wife was entirely successful on this issue. I also note that the amount in issue was not significant.

Determination of the husband’s income

8A central issue at trial was the determination of the husband’s income, both in relation to past income relating to retroactive support and in relation to current income. Success was mixed on this issue and the amounts which the court accepted were below those advocated by the wife. Having said this, the issue was difficult, partly because of the nature of structural changes in the nature of the husband’s work which had started around the time of the separation and partly because the husband offered little assistance in this regard.

9The determination of the husband’s income largely resolved the issue of quantum of retroactive and ongoing child and spousal support. I would not attribute costs to either party in relation to this issue.

Retroactive and ongoing spousal support

10The husband submits that success was divided on the issue of ongoing spousal support which was the most contentious and significant issue at trial. I do not agree. The husband was opposed to paying ongoing spousal support. He argued and led evidence to the effect that she was not entitled to spousal support at all. He also argued that spousal support should not continue past her anticipated graduation date. He was not successful on this point. These issues consumed a considerable amount of time.

Retroactive and ongoing child support

11As indicated above, the main issue was quantum which was resolved by the determination of income. However, the wife was also successful in that retroactive support was ordered payable to the date of separation which the husband had opposed.

12The husband had paid down the mortgage in significant amounts in the period preceding the separation and argued (and led evidence on the subject) that he should effectively be credited for this. He was not successful in this.

13In setting the amount of costs to be awarded, s. 24(11) sets out the following factors which the court shall consider:

(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. O. Reg. 114/99, r. 24 (11) .

Retroactive and ongoing s. 7 expenses

14Section 7 expenses were largely determined by the husband’s income level. The wife was successful in obtaining an order for a fixed monthly amount to be attributable to s. 7 expenses. She did not obtain as much as she was seeking for retroactive s. 7 expenses. Documentation of the amounts claimed for retroactive s. 7 expenses were not produced until trial, and much of this documentation was not accepted by the court. Having said this, the husband did not take a reasonable position or make any offers on this issue. On balance, I would not make an order for costs in relation to s. 7 expenses.

Child Custody and Access

15The husband did not seriously oppose the wife’s claim for custody of the children. He has not exercised access for some time for reasons that are discussed in the reasons for decision. In retrospect, it was not a serious issue in the trial.

16The husband did, however, rely on issues of access as the basis for introducing evidence relating to the assault charge and a subsequent car accident. Although I agreed to hear the evidence on this basis, I did not take it into account at all because, having heard it, I was satisfied that it was entirely irrelevant to any of the issues before the court. This evidence and the husband’s position on it, however, did extend the length of the trial and is, in my view, a factor which is relevant for me to consider in light of Rule 24(11) (b).

17I would distinguish the husband’s conduct in this regard from his overall conduct as an unrepresented litigant. In general, he was well prepared, and conducted himself well before the court. As his cost submissions point out, he should not be penalized because, not having a lawyer, his emotions were somewhat more exposed, and I would not do so. Apart from the fact that he consumed court time with evidence and issues that (as I cautioned him at the time) were not relevant to the issues at hand, his conduct was not unreasonable and did not unduly extend the length of the trial in my view.

Other considerations

18The respondent husband did not present a formal offer to settle. The applicant wife did make formal offers to settle on January 28 and March 11, 2011 respectively. While she was not more successful than these offers at trial, the husband did accept some of the provisions of the March 11. 2011 offer which became Partial Minutes of Settlement that were filed at the beginning of trial.

Conclusion

19Overall, the wife was more successful at trial than the husband. In light of this consideration, and also taking into account the fact that the husband’s insistence on introducing evidence and submissions that did not actually bear on the issues extended the length of the trial, I conclude that an order for costs payable by the husband should be made. Taking the mixed success into account, I would order the husband to pay the wife costs in the amount of $8,500, payable as support.

Harvison Young J.