SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-08-4171
DATE: 20140401

RE: Linda Susan Clark, Applicant

AND:

Robert Alan Leska, Respondent

BEFORE: Lemon, J.

COUNSEL:
Linda Susan Clark, In Person
Wendela M. Napier, for the Respondent

HEARD: December 12, 2013

COSTS ENDORSEMENT

The Issue

[1] On January 17, 2014, I issued my judgment in this matter. The issues related to the principal residence of the couple’s son along with a variation of child support relating to the proposed move. I was also required to determine the incomes of both parties for 2012 and 2013.

[2] In the end result, Mr. Leska was principally successful in the sense that I found that the parties’ son should reside primarily with Mr. Leska; the effect of that was that the amount of monthly support payable by Mr. Leska to Ms. Clark was reduced.

[3] I allowed the parties to provide written submissions with respect to costs. Mr. Leska seeks costs in the amount of $10,000.00. I have received no submissions from Ms. Clark.

Applicable Law

[4] The Family Law Rules provide the following with respect to an award of costs:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(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.

[5] Costs rules are designed to foster three fundamental purposes:

(a) to partially indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

(See: Phuong v. Chan 1999 2052 (O.N.C.A.) 1999 46 O.R. (3d) 330.)

[6] I am also required to take into consideration what an unsuccessful party would reasonably expect to pay for such a proceeding

[7] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.), (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[8] This application was extremely important to both parties. It related to the best interests of their son, and had a substantial impact on their household finances. The determination of child support in situations where one child resides with one parent and another child shares time with both parents is complex and difficult for judges and lawyers, let alone an unrepresented litigant, such as Ms. Clark.

[9] Although Mr. Leska submits that Ms. Clark was unreasonable, the fact that she was unsuccessful does not, in itself, determine reasonableness. Ms. Clark made sensible, organized and sincere submissions with respect to the various issues. I cannot find that she was unreasonable in her behavior.

[10] I note that Mr. Leska failed to advise Ms. Clark that his income had increased in 2012. In his submissions, he acknowledged that he had underpaid by $3,000.00 that year. That support should have been increased in a timely fashion. This is conduct that should not be ignored by the court.

[11] A costs outline was provided by counsel for Mr. Leska. The hourly rate of $400.00 is on the high side.

[12] The costs outline includes preparation for and attendance at the case conference. Costs are to be determined at the completion of each step. If costs are not awarded at the time of the case conference, it is not appropriate that the trial judge deal with them at the end of the proceeding. (See: MacIntosh v MacIntosh 2008 CarswellOnt 655 (S.C.J.) and Islam v Rahman 2007 ONCA 622, 2007 CarswellOnt 5718 (Ont.C.A.). Accordingly, I deduct that amount from my calculation.

[13] An amount of $2,000.00 is set out for “Attendance at court for motion returnable December 12, 2013.” A further amount of $5,640.00 is set out for “Review of responding documents from Linda Clark preparation for and attendance at motion returnable December 12, 2013.” Finally, an entry is set out “Preparation of submissions for motion” in the amount of $1,000.00. It would seem that there is double counting here. I have therefore deducted the sum of $2,000.00 and $1,000.00 from my calculation.

[14] The total, then, for preparation and attendance comes to $9,500.00. Travel and the preparation of cost submissions bring the bill to just over $10,000.00. Disbursements in the amount of $634.19 are not exceptional. All of that combined would suggest a substantial indemnity costs order of something in the area of $11,000.00

[15] Although Mr. Leska made offers to settle and Ms. Clark did not, my order was a better result for Ms. Clark than Mr. Leska’s offer. The issues were sufficiently complex that it does not surprise me that Ms. Clark could not make a useful proposal.

[16] I do not believe that Mr. Leska should be more than partially indemnified for his costs despite being successful. Taking all of that into consideration, a fair and reasonable amount that should be paid by Ms. Clark is $5,000.00.

[17] Given Ms. Clark’s financial circumstances, that amount shall be paid at the rate of $1,000.00 per year payable on the first day of May in each year, commencing May 1, 2014. Interest at the present Courts of Justice Act rate of 3% shall be payable on any balance outstanding as at May 1 of each year commencing May 1, 2015.

Lemon, J.

Date: April 1, 2014