Court File and Parties

COURT FILE NO.: FC-13-0356

DATE: 2013-12-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ana Paula Guimaraes Parreira, Applicant

AND:

Michael Silva Parreira, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL: Omar Khan, for the Applicant

Lorene H. McDougall, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[1] On October 17, 2013, counsel argued a lengthy motion before me. The major issues were access by the Respondent to the parties’ children, Julie and Michael, as well as temporary child support. A lesser issue raised by the Respondent was a vehicle owned by the Respondent, but being used by the Applicant’s older daughter, Alana; the Respondent demanded return of that vehicle. Medical and dental coverage for the Applicant under the Respondent’s plan was also raised in the Applicant’s motion material, but resolved on consent during argument.

[2] In my decision, I ordered that the Respondent have access to his children to be supervised by his family members, specifically his parents or his sister. I dismissed the request of the Applicant to impute income to the Respondent in the amount of $70,000 per annum for child support purposes; child support of $438 per month was ordered after I determined the Respondent’s income to be $30,000 per annum. The Respondent’s motion for return of his vehicle was dismissed, subject to the Applicant providing proof of insurance and paying the 407 fees and parking tickets.

[3] The parties now each seek costs of the motion. The Applicant seeks partial recovery costs which her counsel says are in the amount of $4,513.89. The Respondent asks for full recovery costs of $11,309.89 for preparation for and attendance at two motion dates, being August 15 and October 17, 2013.

Success on Motion

[4] In considering costs, under Rule 24(1) of the Family Law Rules,[^1] costs follow the event, and a successful party is presumed to be entitled to costs. Moreover, if success is divided, I may apportion costs as appropriate (Rule 24(6)). Both parties appear to be claiming partial or complete success, and each claims costs as a result. Accordingly, I need to determine whether the Applicant or the Respondent enjoyed substantial success on the motion.

[5] Both parties made offers to settle immediately prior to the motion. As well, Ms. McDougall has also provided copies of draft temporary minutes of settlement signed by her client and tendered on Ms. Parreira on July 9, 2013; Ms. Parreira refused to sign those minutes. I will consider the offers in the context of Rule 18 below; however, both the offers and minutes reflect upon the ultimate success of the parties in the result of the motion.

[6] It is apparent to me that, in respect of the major issues before me, both the Respondent’s offer as well as the temporary minutes tendered by him on July 9 are much closer to the result than is that of the Applicant. In the draft Minutes dated July 9, 2013, Mr. Parreira offered to pay child support in the amount of $480 per month based on estimated income of $32,954.84. This is echoed in his offer to settle, which offered $431 per month based on income of $29,527.34. Contrast this to Ms. Parreira’s offer of support of $1,037 per month based on income imputed to Mr. Parreira of $70,000 per annum. Contrast this as well to my ruling that Mr. Parreira pay child support of $438 per month based on my finding that his income was $30,000 per annum. Although my ruling differed with the offer and draft minutes as to the amount that was to be applied to child support, my ruling on ongoing temporary child support was extremely close to that offered on several occasions by the Respondent.

[7] Both the offer to settle, as well as the materials filed by the Respondent, make it apparent that he had success on the other major issue argued, which was access. Mr. Parreira was consistent throughout that he wished his family members, specifically his parents or his sister, to supervise access rather than a supervised access centre. My determination was on all fours with that argument. I note that Mr. Parreira never attempted to obtain unsupervised access and his position on this very important issue was entirely reasonable.

[8] There are several smaller issues, specifically the medical and dental coverage and the vehicle used by Alana, on which Mr. Parreira was unsuccessful. However, compared to the major issues argued, those matters were insignificant. The majority of the materials filed and argument made related to support and access. As such, I do not find success to be divided, and I find that Mr. Parreira was successful in the result. Accordingly, he is entitled to his costs of the motion.

Offers to Settle

[9] Both parties have served and filed offers to settle. Both parties rely upon their offers to settle in claiming costs.

[10] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[11] The offer to settle made by the Applicant does not comply with Rule 18(14). It is not clear as to whether it is an offer on the motion or on the proceedings as a whole; it speaks of spousal support which was not before the court, and does not specify whether the acceptance of the offer will result in a temporary or a final order. More importantly, the order made by me was not “as favourable as or more favourable than the offer.”

[12] Similarly, the offer made by the Respondent is not the same as the order made, nor is it more favourable to the Respondent that the order. I ordered the vehicle to remain in the hands of the Applicant and I ordered an amount applied to support different from that set out in the offer. Moreover, the offer was not served at least one day prior to the motion date as required by Rule 18(14) as a signed copy was not provided to the Applicant until the morning of the motion. As such, the offer made by the Respondent does not attract full indemnity costs under that rule.

[13] I have already taken the offers into account in determining success on the motion as set out above. In view of the late service of the Respondent’s offer to settle and in setting costs, I have determined not to take the Respondent’s offer to settle into account under Rule 18(16) beyond determining success on the motion.

Quantum of Costs

[14] The Respondent seeks full indemnity costs of $11,309.89 for the attendance on this motion on August 15 and October 17, 2013. There is no basis for this request and costs are only awarded on a full indemnity basis in exceptional circumstances: see Boucher v. Public Accountants Counsel (Ontario) 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).

[15] It is unclear as to what occurred on August 15, 2013. Minutes were entered into on certain issues concerning the release of funds, and it does not appear that the matter was argued on that date. The parties acknowledged that they could not resolve access and the October 17 date was set as a result.

[16] The bill of costs filed by Respondent’s counsel does not break the time down in any way. The endorsement of Wildman J. makes it apparent that the outstanding issues of access and support were before the court on August 15, 2013 and were adjourned to the motion heard on October 17. The Respondent shall accordingly have costs for both appearances notwithstanding the fact that costs were not reserved.

[17] The Respondent’s counsel claims over 31 hours of lawyer’s time and nearly 14 hours of assistant’s time for preparation for and argument of this motion. This appears to me to be excessive considering the nature of the motion argued. I apply the principle set out by Wildman J. in Murphy v. Murphy, 2010 ONSC 6204, 2010 CarswellOnt 8616 (S.C.J.) at para. 20:

I am assuming that the decision to spend so much money preparing for this motion was Mr. Sapir's rather than his counsel's. Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner.

[18] The Respondent shall be entitled to partial indemnity costs in the amount of $4,500, payable by the Applicant from her share of the net proceeds of the matrimonial home presently held in trust.

McDERMOT, J.

Date: December 6, 2013

[^1]: O. Reg. 114/99