COURT FILE AND PARTIES
COURT FILE NO.: FS-10-355917
DATE: 20140603
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: L.M.A. v Applicant
AND:
P. H., Respondent
BEFORE: C. Horkins J.
COUNSEL: Irving I. Frisch, for the Applicant
P.H., acting in person
COSTS ENDORSEMENT
Introduction
[1] The trial of this matter proceeded in January and February 2014. I released my Reasons for Judgment on March 19, 2014. In summary, the applicant was successful. I found that the child, GA, is a child of the marriage and ordered the respondent to pay retroactive child support of $10,000 and child support going forward as long as GA is a child. I also ordered the respondent to pay spousal support as of April 1, 2014 for 12 months at $959 a month.
[2] The parties have not been able to agree on costs. In accordance with my direction, the parties have delivered costs submissions.
[3] The applicant seeks costs inclusive of fees taxes and disbursements in the amount of $79,766.
[4] The respondent takes the position that no costs should be ordered because he says that success at trial was divided.
the legal framework
Factors to Consider
[5] Rule 24 of Family Law Rules, O. Reg. 114/99 deals with costs. Rule 24(1) states that the successful party is presumed entitled to costs.
[6] Rule 24(11) of Family Law Rules states that in setting the amount of costs the court shall consider the following factors:
(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.
Analysis
Importance, Complexity or Difficulty of the Issues
[7] The issues were important to the parties and of moderate difficulty.
The Lawyer’s Rate, Time Spent and Expenses
[8] This was a seven day trial. Senior counsel with 39 years of experience represented the applicant. His hourly rate was a reasonable $275/hour. While another lawyer represented the applicant at the start of the litigation, the vast majority of the work was done by counsel who represented the applicant at trial. In total, about 250 hours of work are included in the costs outline. Of these hours, 130 were spent preparing for and attending trial. Counsel explains that the time spent before trial was in large part required because of the constant demands of the respondent for disclosure. The respondent takes the position that the applicant repeatedly failed to provide required disclosure. While various court orders reflect the applicant’s need to provide disclosure, this cannot justify for the amount of time incurred before trial.
Other Relevant Matters – Offers to Settle
[9] The applicant served many offers to settle during the life of the application. She served an offer dated October 28, 2010 seeking a lump sum of $95,000 and an offer dated January 25, 2011 seeking a lump sum of $80,000. On November 2, 2013, an offer was served seeking child support for as long as GA was a child and spousal support for about 4 months. All of these offers were revoked by the final offer made on January 28, 2014. This offer requested child support for as long as GA was a child and spousal support for about a year and a half at $1,250 a month.
[10] The applicant did not do as well as her offer on the issue of spousal support. If child support ends when GA is 18 then the obligation under the judgment will require the respondent to pay about $34,416. It is not possible to speculate as to whether the obligation will continue beyond 18. Child support under the offer is virtually the same as what the applicant recovered at trial. The judgment requires the respondent to pay retroactive child support and the offer did not.
[11] The respondent served two offers to settle. The first was dated August 6, 2013 and required the applicant to agree to a dismissal of all claims with no costs paid. The second offer was dated December 18, 2013. It allowed for two months of spousal support at $1,250 a month, no child support and no costs. This second offer was withdrawn after the trial started. The applicant’s success at trial far exceeded the respondent’s offers.
[12] The applicant’s final offer to settle was not made 7 days before trial and, as a result, the cost consequences of Rule 18 of the Family Law Rules are not triggered.
[13] Although Rule 18 is not engaged, the applicant is still entitled to fair and reasonable costs.
Each Party’s Behaviour
[14] Each party acted reasonably throughout the application. While the applicant claims that the costs are high because of the respondent’s numerous demands for disclosure, this does not lead me to characterize his behaviour as unreasonable.
[15] The applicant refers to the fact that the respondent has appealed the trial judgment. The respondent is concerned that this has been raised. I confirm that the fact of an appeal is irrelevant to my decision on costs.
[16] The respondent alleges that the applicant has acted in bad faith because she was not prepared for various court attendances, did not make full disclosure and filed her costs submission late. Failure to comply with deadlines is not to be equated with bad faith.
Fair and Reasonable Amount
[17] In awarding costs, I must identify an amount that is fair and reasonable in the circumstances. Two decisions from the Court of Appeal emphasize this approach: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291(C.A.) and Moon v. Sher, [2004] O.J. No. 3942 (C.A.).
Conclusion
[18] When all of the above factors are taken into consideration, I conclude that a fair and reasonable amount for costs is $35,000 inclusive of all fees, taxes and disbursements. I order the respondent to pay this amount.
C. Horkins J.
Date: June 3, 2014