ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 203/09
DATE: 2013/05/30
BETWEEN:
KIMBERLEE ELIZABETH MARCHANT
Lisa Triano, for the Applicant
Applicant
- and -
PAUL HENDRIKS
Virginia L. Workman, for the Respondent
Respondent
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[1] The Applicant brought a Motion to Change a support order made on January 13, 2010. This Order had provided for the Respondent to pay child support for three children in an amount that was 80 per cent of the Child Support Guidelines.
[2] The Motion was heard on February 28, 2013 and Reasons for Judgment were released on March 21, 2013. Counsel made written submissions on the issue of costs, which submissions have now been reviewed.
[3] While it was disputed as to the reason that the children were not with the father as much as was contemplated under the prior order (whether due to the mother’s manipulation of the children, or a failure by the father to exercise the access, or some combination of both factors), there was no dispute that the time that the children were in the care of their father had been reduced. I found that there had been a material change in the circumstances of the children that justified a variation in the child support payable by the Respondent.
[4] The Applicant claims full indemnity costs of $18,251.33 ($15,865.00 fees plus HST of $2,062.45; $323.88 disbursements). The Bill of Costs indicated a total amount of time of 63.5 hours having been spent at $250.00 per hour.
[5] The Respondent’s position is that there should be no order as to costs.
Determination of Costs
[6] The issue of costs in family matters is governed by Rules 18 and 24 of the Family Law Rules.
Success
[7] Pursuant to Rule 24(1), the successful party is presumed to be entitled to recover costs. Consideration of success is the starting point in determining costs (Sims-Howarth v. Bilcliffe, 2001 24190 (ON CA), [2001] O.J. No. 330).
[8] The Applicant submits that she was largely successful.
[9] The Respondent submits that the Applicant was only partially successful, having failed on two out of three arguments such that only one-third of the fees directly related to the Motion should be considered.
[10] The Applicant was successful in that the child support was adjusted to require the Respondent to pay full table child support based on changes in the amount of time that the Respondent had the children in his care. However, the Applicant did not succeed on all arguments advanced: that the January 13, 2010 order was an interim order and that a material change in circumstances was not necessary; and only one of the s. 7 expenses claimed (tutoring) was awarded as, once the full table amount of child support was to be paid, the remaining expenses were disallowed as they were no longer “extraordinary”.
[11] There is no doubt that the main issue on the Motion before me was whether full table child support should be paid. That is the issue that took the most time. Although the Applicant did not succeed on all of the issues, the Applicant was successful in obtaining full table child support and she is entitled to some costs, but not in the full amount claimed.
Costs to be Determined at Each Step
[12] Rule 24(10) requires the Court to determine costs after each step in a case. The Ontario Court of Appeal (Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416) confirmed that a Judge should not make an order for costs in relation to any earlier step in a case where no costs were ordered or where there was silence on the issue.
[13] It is clear from the Bill of Costs submitted that a substantial amount of the time related to work that was done prior to the Motion to Change being brought and related to Case and Settlement Conferences. As such, in accordance with Rule 24(10) and the Islam decision, no amount can be allowed for those steps.
Importance, Complexity, Difficulty of Issues
[14] Rule 24(11) sets out the factors to be considered by the Court in determining costs. Subsection (a) directs the Court to consider the importance, complexity or difficulty of the issues.
[15] While I have no doubt that the issues were extremely important to the parties, for the most part, they were not legally or factually complex.
Parties’ Behaviour
[16] Rule 24(11)(b) requires the Court to consider “the reasonableness or unreasonableness of each party’s behaviour in the case”. Rule 24(5) provides guidance as to a determination of “reasonableness”.
[17] Having considered the evidentiary record as well as the submissions of the parties on the substantive issues and on the issue of costs, I find that the Applicant’s position on whether the order of Justice Taliano was an interim or final order was not reasonable in the circumstances. However, I also find that the Respondent’s position on insisting that he should only pay 80 per cent of the Child Support Guidelines should be paid in the face of the reduced amount of time that the children were in his care, to be unreasonable.
[18] However, neither of these represented “bad faith” behaviour such that either party should be penalized when determining the issue of costs.
Lawyer’s Rates & Time Spent
[19] Rule 24(11) (c) and (d) requires that the Court consider the lawyer’s rates and the time spent.
[20] Given the year of call, the hourly rate for the Applicant’s lawyer is reasonable.
[21] From a review of the Bill of Costs, the amount that could be properly claimed with regard to the Motion is approximately 28 hours. Given the issues involved, and that this was not an overly complex matter, this seems excessive. Further, and as noted by the Respondent’s counsel, some of this time would have related to the preliminary issue (interim vs final order) and the issue of s. 7 expenses, two of the issues on which the Applicant was not successful. However, I would not assign two-thirds of that time to those two issues, as the main issue remained whether full table child support should be paid.
[22] In any event, a cost award is not simply a mathematical calculation of the time properly spent multiplied by the lawyer’s hourly rate, but should reflect what is a fair and reasonable amount to be paid by an unsuccessful party (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).
Offers to Settle
[23] Rule 18 deals with Offers to Settle and Rule 18(14) describes the cost consequences of failing to accept an offer.
[24] There were various Offers made by both parties and I have had an opportunity to review those. In the Applicant’s Offer to Settle dated January15, 2013, she proposed settlement with full table child support being paid and some contribution toward s. 7 expenses. If this had been accepted each party would pay their own costs, but if not accepted by a set date, costs of $4,000.00 would be paid by the Respondent.
[25] In none of the Respondent’s Offers to Settle did he propose an increase in the table child support. As the basis for the reduced table child support was the amount of time that the children were to spend with him, the Respondent should have expected that there would have been some adjustment to the child support. In the final Offer to Settle, he proposed a further reduction based on his current income (an issue that was not properly before the Court) with a continuation of only 80 per cent of the table child support being paid.
[26] Faced with those proposals, the Applicant had no choice but to proceed with the Motion to Change.
Disposition
[27] After considering all of the circumstances of this case, taking into consideration the factors as set out in the Family Law Rules, it is appropriate that an Order shall issue that the Respondent pay costs to the Applicant in the amount of $5,000.00 inclusive of HST, to be paid within 60 days.
MacPherson J.
Released: May 30, 2013
COURT FILE NO.: 203/09
DATE: 2013/05/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMBERLEE ELIZABETH MARCHANT
Applicant
- and -
PAUL HENDRIKS
Respondent
COSTS ENDORSEMENT
MacPherson J.
Released: May 30, 2013