ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL JAMES CRABBE
Applicant
– and –
JANE CRABBE
Respondent
Melanie A. Larock, for the Applicant
Thomson, Rogers
Barristers and Solicitors
Suite 3100, 390 Bay Street
Toronto, ON M5H 1W2
Tel: 416-868-3231
Fax: 416-868-3134
Respondent in person
HEARD: Written Submissions
Justice C. Lafreniere
Ruling on Costs
1The Applicant’s motion to change (“MTC”) the child support provision in the final order of Justice Hambly, dated October 22, 2007 (“the final order”) proceeded before me on February 18, 2014 and I released my decision on February 27, 2014.
2The Respondent filed a Response to Motion to Change, but, did not attend the hearing which proceeded for one day although three days had been scheduled.
3For ease of reference I will identify the Applicant as the father and the Respondent as the mother.
4This is my ruling with respect to costs.
5The father states in his costs submissions his total costs in this proceeding are $49,176.09 inclusive of disbursements and HST. He seeks costs in the sum of $5,000.00 approximately 10% of his actual costs.
6The father submits he is presumptively entitled to costs as the successful party.
7The mother filed submissions in response to the father’s claim for costs. She asserts she cannot afford to pay any costs. She does not address the issues raised in the father’s submissions on costs.
8Ability to pay is one consideration. It is not the only consideration. The mother could have avoided any costs award by accepting the father’s offer of settlement. Instead she chose to simply ignore the process and cannot now complain about an order made in her absence when she advised she would not attend.
9The father replied to the mother’s submissions. He noted that the mother did not serve a case conference brief, settlement conference brief, any settlement proposals or any formal offers to settle.
The Law
10Costs in family law matters are governed by Family Rule 24. The discretion to award costs under s. 131 of the Courts of Justice Act, as circumscribed by the Family Law Rules continues to apply in family law matters. The factors listed in Rule 57.01 of the Rules of Civil Procedure also continue to apply to family law proceedings pursuant to Family Rule 1 (7).
11The successful party is presumptively entitled to costs as provided by Family Rule 24 (1):
Rule 24 (1) SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS—There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
12There is no issue that the wife is the successful party. This is not a case of mixed or partial success.
13Family Rule 24 (11) sets out the factors to be considered by the court in setting the amount of costs:
i. the importance, complexity or difficulty of the issues;
ii. the reasonableness or unreasonableness of each party’s behaviour in the case;
iii. the lawyer’s rates;
iv. 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;
v. expenses properly paid or payable; and
vi. Any other relevant matter.
14Family Rule 18 (14) deals with the costs consequences of failing to accept an offer:
Rule 18 (14) COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER—A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
15Civil Procedure Rule 57.01 (1) sets out considerations in the exercise of discretion to award costs:
57.01 (1) Factors in discretion—In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) Any other matter relevant to the question of costs.
16The father served an offer of settlement dated January 8, 2014. He acknowledges that the offer is not an offer pursuant to Rule 18 because the result of my order was not as favourable to the father as the offer.
17The offer provided child support would be reduced to nil as of January 1, 2014 (based on income below the threshold) and that an overpayment of child support be fixed at $3,666.00 and credited against any future child support obligation.
18My order provided that child support be reduced to nil as of January 1, 2014 and fixed arrears of child support at $995.98 to be paid in monthly instalments of $50.00 beginning March 1, 2014 until paid in full.
19The father was substantially successful and is entitled to costs on that basis. He submits his full recovery costs are approximately $50,000.00. He seeks $5,000.00 which is much less than even partial indemnity costs.
20The costs the father seeks are reasonable in all of the circumstances.
21The mother will pay costs fixed in the sum of $5,000.00. The arrears of $995.98 may be off-set against this amount.
22The only issue before the court was child support and it is appropriate that a support deduction order issue with respect to the costs order.
23Therefore my order is:
The Respondent mother will pay the Applicant father’s costs fixed in the sum of $5,000.00;
The child support arrears owing by the Applicant to the Respondent in the sum of $995.98 may be off-set against the costs order; and,
A support deduction order will issue.
LAFRENIÈRE J.
Released: June 13, 2014
COURT FILE NO.: FS-1169-01(03)
DATE: 2014-06-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL JAMES CRABBE
Applicant
– and –
JANE CRABBE
Respondent
REASONS FOR JUDGMENT
Lafrenière, J.
Released: June 13, 2014