T.N. v. R.N., 2013 ONSC 7458

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 35389/13
DATE: 20131205

RE: T.N.

Applicant

v.

R.N.

Respondent

BEFORE: Conlan J.

COUNSEL:
J. Kelvin Ford, for the Applicant
Sally Chiarelli, for the Respondent

REASONS FOR DECISION ON COSTS

Conlan J.

1On September 12, 2013, in Milton, I heard two motions. After reserving my decision, the Court’s 8-page handwritten Endorsement was released to counsel the following day.

2The first motion was brought by the Respondent father, Mr. N. He sought an Order dividing the household contents – that relief was denied. He sought from the Applicant mother, Ms. N., a payment of $14,000.00 in exchange for him transferring title to a motor vehicle to Ms. N. – that relief was denied. He sought an Order that the matrimonial home be sold without the need for the Applicant’s signature – that relief was denied. He sought an Order compelling the Applicant to sign a line of credit against the matrimonial home – that relief was denied.

3The father’s motion was therefore dismissed in its entirety.

4The second motion was brought by the Applicant, Ms. N. She sought exclusive possession of the matrimonial home and a motor vehicle – that relief was granted. She sought child support from Mr. N. for the three children in the amount of $3,071.00 monthly plus $1,334.00 per month for section 7 Guidelines expenses – that relief was granted in large part. The father had suggested that he pay $2,500.00 per month in base child support plus $1,000.00 monthly for section 7 expenses. I ordered that Mr. N. shall pay $3,000.00 per month plus $1,000.00 monthly for section 7 expenses based on the Respondent’s gross annual income of $219,276.00. I clearly preferred the calculations supplied by the mother over those offered by the father. I deferred the Applicant’s request to make the child support payments retroactive. Finally, the mother sought spousal support from Mr. N. in the amount of $1,561.00 monthly – that relief was granted in large part. The father had suggested nil spousal support unless and until after the matrimonial home sold, and then $1,500.00 monthly. Based on Ms. N.’s gross annual income of $74,778.00 and the lengthy 22-year relationship between the parties, I ordered that the Respondent shall pay $1,200.00 per month in spousal support. Again, I deferred the Applicant’s request to make the spousal support payments retroactive.

5A Temporary Order was issued accordingly.

6My Endorsement concluded as follows: “Ms. N. was entirely successful on Mr. N.’s motion and largely successful on her motion. She is entitled to costs. If counsel cannot agree on quantum, I may be spoken to through the Trial Coordinator in Milton”.

7The parties were unable to agree on the amount of costs. Written submissions were filed, which I have reviewed.

The Position of the Applicant, Ms. N.

8The Applicant filed written costs submissions supplemented by a Bill of Costs, time dockets, an analysis of the factors outlined in Rule 24 of the Family Law Rules, offers to settle and prior Endorsements.

9Ms. N. seeks costs on a substantial indemnity basis in the total amount of $27,787.87: $23,375.25 for fees, plus HST, plus $1,373.84 for disbursements.

The Position of the Respondent, Mr. N.

10Mr. N. suggests in his written submissions that he pay to the Applicant $10,000.00 in costs in three equal instalments in January, February and March, 2014.

11That, asserts the Respondent, is a just and reasonable amount in all of the circumstances including Mr. N.’s financial obligations and ability to pay.

Analysis

12Quantum of costs is largely discretionary. There is no magic formula for determining the amount. I shall consider the factors outlined in Rule 24. I shall consider the reasonable expectations of the parties. I shall give credence to the overriding objective of making an award that is fair, just and reasonable in all of the circumstances. I shall consider the three fundamental purposes of modern costs rules, as identified by the Court of Appeal for Ontario in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905: (i) to partially indemnify the successful litigant; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants.

13Ms. N. is presumed to be entitled to costs [sub rule 24(1)], and I have already ruled that she will receive costs.

14As the successful party, there is no reason to conclude that Ms. N. has behaved unreasonably: sub rule 24(4).

15Although it is true that Ms. N. did not receive everything that she asked for on her motion, this is not a case of divided success: sub rule 24(6). As I said in my handwritten Endorsement, the Applicant was entirely successful in defeating the Respondent’s motion and largely successful on her own motion.

16I make no finding that either party was absent or unprepared: sub rule 24(7). But Ms. N. is entitled to costs for the court appearance before Ricchetti J. on August 21, 2013, which costs were reserved to me as the Justice who decided the motions.

17I make no finding that either party acted in bad faith: sub rule 24(8).

18I make no finding that costs were caused by the fault of either lawyer: sub rule 24(9).

19In this case, quantum of costs turns largely on sub rules 24(5) and 24(11).

20Regarding sub rule 24(5), it is important to note at the outset that the Court may consider, in assessing the factors under Rule 24, any written offer to settle, even if the party who made the offer did not ultimately meet or exceed it: sub rule 18(16).

21The purpose of sub rule 18(16) is clear. Family law litigation is expensive, time-consuming and stressful. Offers to settle should be encouraged.

22Sub rule 18(16) explains why, for example, a Court has discretion to award full recovery of costs even where the conditions of sub rule 18(14) have not been met: M. (A.C.) v. M.(D.), 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.).

23Ms. N. made an offer to settle dated September 10, 2013. That offer provided, among other things, that Mr. N. pay spousal support in the amount of $1,550.00 per month (although not unreasonable, higher than what I ordered); that Mr. N. pay base child support in the amount of $3,071.00 per month (approximately what I ordered) plus $1,334.00 monthly on account of section 7 expenses (although not unreasonable, higher than what I ordered); that Ms. N. have interim exclusive possession of the matrimonial home (which I ordered); and that Mr. N. transfer to Ms. N. title to the van (which relief is consistent with my Temporary Order that the Applicant have exclusive possession of the motor vehicle).

24Thus, although it cannot be said that Ms. N. obtained an Order equal to or better than the said offer to settle, it is also true that Ms. N.’s offer to settle was a reasonable one and close to what I ultimately ordered.

25The Respondent’s counter-offer to settle was sent by facsimile to counsel for Ms. N. after 10:00 p.m. on September 11, 2013. That was, practically speaking, the equivalent of serving the offer immediately prior to argument of the motions at court on 12 September, 2013. Besides, that counter-offer provided for a woefully inadequate amount of base child support payable by the father - $1,900.00 per month. It was certainly not unreasonable for the Applicant to have declined that counter-offer made by Mr. N.

26Regarding sub rule 24(11), I find that the issues underlying the motions were surely important to both parties. The issues, though numerous, were of moderate complexity. The Applicant, in my view, put forward a more reasonable effort to settle the issues than did the Respondent. Although implicit in the Respondent’s written submissions, I do not agree with Mr. N. that there is anything unreasonable about the hourly rates, time spent or disbursements charged by counsel for the Applicant.

Conclusion

27Having balanced all of the relevant factors, and taking in to account Mr. N.’s ability to pay and his financial obligations as a result of my Temporary Order, I have decided to discount the fees claimed by the Applicant ($23,375.25) by one-third ($7,790.97), resulting in an award in favour of the Applicant in the amount of $15,584.28, plus HST ($2,025.96), plus $1,373.84 for disbursements. That total amount is $18,984.08.

28To that quantum, I must consider adding something for the court appearance before Ricchetti J. on August 21, 2013. The matters were adjourned that day at the request of the Respondent. Although the Applicant and her counsel had no prior notice of the adjournment request, it was a necessary one as counsel for Mr. N. had a medical issue. Thus, I will add only a token amount to bring the total figure to an even $19,000.00.

29I order that Mr. N. shall pay to Ms. N. costs in the total all-inclusive amount of $19,000.00.

30I will accede to the request of the Respondent in terms of the proposed payment schedule. The costs ordered herein shall be paid by Mr. N. in three equal instalments ($6,333.33) and on this schedule: the first payment on or before 4:00 p.m. on Friday, January 3, 2014; the second payment on or before 4:00 p.m. on Friday, February 7, 2014; and the third payment on or before 4:00 p.m. on Friday, March 7, 2014.

31So ordered.

Conlan J.