ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 397/06
DATE: 2014/09/23

BETWEEN:

DARRYL FRANCIS LEFKO

Self-represented Applicant

Applicant

• and -

VONDA LEE BATE

Foluke A. Ololade, for the Respondent

Respondent

The Honourable Madam Justice W.L. MacPherson

COSTS ENDORSEMENT

1The applicant commenced a motion to change seeking access to the child, Cristian, born May 12, 2000. The respondent replied by way of an answer in which she requested that the claim for access be dismissed and that the applicant be required to contribute toward the extraordinary expenses for the child.

2As the issue of access had been resolved on consent through a final order made by Justice Maddalena on March 7, 2014, the only issues left to be determined were the financial issues raised by the respondent in her answer.

3Following a two day trial, an order was made requiring the applicant to pay the sum of $360.00 per month based on an imputed income of $40,000.00, commencing August 1, 2014.

4The applicant was also required to pay s. 7 expenses for 2013 in the total amount of $1,364.00. The applicant was also required to pay s. 7 expenses for 2014 (hockey and braces) in the total amount of $2,400.00, to be paid at the rate of $200.00 per month.

5The trial was held on August 6 and 7, 2014. The parties were requested to make submissions with regard to costs and the respondent’s counsel requested some time in order to make written submissions. Those written submissions were received on August 20, 2014 and the applicant’s response on the issue of costs was received on September 4, 2014. I have now reviewed the cost submissions of both parties.

6The respondent seeks costs on a full recovery basis in the total amount of $13,187.35 inclusive of HST and disbursements.

7It would appear from the cost submissions from the applicant that he is not in agreement with the court order that has been made. He has his remedies to deal with that. It would also appear that he does not believe that any order for costs should be made against him and his response to the order made has been to proceed with an assignment in bankruptcy and to obtain counselling to deal with the unreasonableness of his experience in court.

8The issue of costs in Family Law matters is determined by Rules 18 and 24 of the Family Law Rules.

9Pursuant to Rule 24 (1), the successful party is presumed to be entitled to recover costs. Consideration of success is the starting point in determining costs. It is clear that the respondent was successful in obtaining an order for ongoing child support together with a contribution toward s. 7 expenses. There is no basis for the respondent to be deprived of her reasonable costs.

10Rule 24 (11) sets out factors to be considered by the court in determining costs. Subsection (a) directs the court to consider the importance, complexity or difficulty of the issues. I find that while the issues were no doubt extremely important to the parties, for the most part they were not complex either legally or factually.

11Rule 24 (11) (b) requires the court to consider “the reasonableness or unreasonableness” of each party’s behaviour in this case. Having considered the evidentiary record as well as the submission of the parties on the substantive issues, I find nothing particularly unreasonable about either party’s approach to this litigation. There was no behavior that could be characterized as constituting “bad faith” as contemplated by Rule 24 (8). However, it was certainly not proper for the respondent’s counsel to file the Settlement Conference brief as part of the cost submissions. Reference may be made to an Offer to Settle contained therein, but the brief itself should never be filed. (See Rule 17 (23))

12Rule 11 (c) requires consideration of the lawyer’s rates and (d) directs the court to consider the time properly spent on the case. Given the year of the respondent’s lawyer’s call to the bar, I consider the lawyer’s hourly rate ($150.00) to be reasonable. However, I do find that some of the times shown to have been spent on the case to be excessive. For example, 7 hours to review the file and prepare an answer and affidavit for custody and support; the preparation of and collation of a trial record (4 hours); and preparation and collation of a document brief (6 hours) cannot be considered a reasonable amount of time to be spent by a solicitor and for which the losing party should pay the costs. While it was shown that there were two days of attendance at court (7 hours each day which also seems somewhat inflated) in light of the issues being dealt with of child support and s. 7 expenses) 8 hours of preparation for each of those two days is excessive in the circumstances.

13Rule 18 deals with offers to settle which must be in writing and signed by both the party and the party’s lawyer. A formal offer to settle dated July 25, 2014 was made by the respondent and provided for settlement on the following terms:

(i) Child support of $336.00 per month based on an income of $38,000.00, commencing September 1, 2014; and

(ii) Contribution toward extraordinary expenses of $200.00 per month (sports and dental), commencing September 1, 2014.

14As such, it is clear that the final result at trial was better than the offer proposed in that the income level was slightly higher and extraordinary expenses for 2013 were also awarded.

15While the offer to settle was dated July 25, 2014, there was no affidavit of service filed, so the court could not ascertain whether same was in fact served at least 7 days prior to trial and whether the cost consequences of failing to accept an offer under Rule 18 (14) should apply.

16I would also note that the respondent failed in satisfying the court of all of her claims with regard to the extraordinary expenses as she lacked full and proper receipts on many of the items claimed and those receipts that she had did not match the amount claimed. It would be difficult for the other side to accept a claim for s. 7 expenses until full and proper documentation had been provided.

17Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont C.A.) sets out the principle that the fixing of costs is not a simple mathematical calculation but rather the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

18After considering all of the circumstances of this case, taking into consideration the factors as set out in the Family Law Rules an order shall issue that the applicant shall pay costs to the respondent in the amount of $5,000.00 inclusive of disbursements and HST. As the trial dealt only with the issue of child support, the costs shall be enforced by the Director of the Family Responsibility Office to the full extent possible.

MacPherson J.