CITATION: Curry (formerly D’Ignazio) v. D’Ignazio, 2015 ONSC 2405
COURT FILE NOS.: FS 03-569-01 BRT
DATE: 2015/04/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kim Curry (formerly D’Ignazio) v. Ezio D’Ignazio
BEFORE: The Honourable Mr. Justice R.J. Harper
COUNSEL: P. Amey for the Applicant
G. McLeod, for the Respondent
C O S T S E N D O R S E M E N T
Issues
[1] The applicant seeks costs in relation to a motion to change heard by me. I ordered:
Child support arrears to be fixed at $21,970.00 as of August 31, 2014;
Child support for the child Patricia in the amount of $700.00 per month to be paid from the respondent to the applicant from September 1, 2014.
[2] The applicant was successful on this motion and is presumptively entitled to her costs.
The Law and Analysis
[3] The starting point in setting costs in family law matters is Rule 24(1):
“24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[4] Rule 24(10) provides that promptly after each step in the case the court should decide who, if anyone, is entitled to costs and set the amount of costs.
[5] Rule 24(11) sets out the factors which must be considered in awarding costs:
(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 signatures of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
Offers to Settle
[6] Rule 18 of the Family Law Rules provides:
(14) 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The offer does not expire and is not withdrawn before the hearing starts.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. O. Reg. 114/99, r. 18 (14).
Cost Consequences – Burden of Proof
[7] (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
Costs – Discretion of Court
[8] (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
[9] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[10] In C.A.M. v. D.M., 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at para. 40, Rosenberg J. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, but that they have not, however, completely removed the court’s discretion. I note that Rule 24(11)(f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act, there remains discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[11] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[12] In Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
“In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.”
[13] While Boucher and Zesta Engineering are not family law cases, I accept that the principles enunciated above are applicable to family law matters.
[14] In the case before me, Mr. Amey submits that this is a proper case in which the applicant should recover full indemnity costs subject to a discount for proportionality.
[15] The applicant served and filed an offer to settle dated December 12, 2013 it provided as follows:
a) Child support arrears of $22,500.00 to December 2013;
b) Child support for Patricia:
i. November-December 2013 $762.00 per month;
ii. January 2014 onwards $462.00 per month;
c) Dundee Trust to be paid out to Nathanial and Donte.
[16] The Respondent’s offer dated April 3, 2014 provided:
a) Child support arrears fixed at $15,000.00;
b) Child support for Patricia;
i. November-December 2013 $762.00 per month;
ii. January 2014 onwards $591.00 per month
c) Dundee funds to be paid out to Nathanial and Donte.
[17] The court order was somewhat less than the amount claimed to be owing under the applicant’s offer. However it was much closer than the amount offered by the respondent.
[18] I agree with Mr. Amey that the applicant had to bring this motion to change in order to secure the disclosure of income information for many years notwithstanding a court order requiring him to do so. His conduct in the process of the litigation was unreasonable in this regard. He was found in contempt by Justice Pazaratz. He only purged his contempt by eventually making disclosure. I find that the late disclosure and low offer must be seen in the unfortunate circumstances of the applicant with her medical diagnosis of a life threatening cancer that she is now facing and her inability to work under the circumstances.
[19] I have reviewed the bill of costs submitted by Mr. Amey and I agree that it should be discounted for proportionality.
[20] The respondent shall pay the costs of the applicant in the amount of $18,000.00 inclusive of fees, disbursements and HST. These costs are payable forthwith and are all related to child support and shall be enforced as such.
Harper J.
DATE: April 15, 2015