Schingh v. Mousseau, 2015 ONSC 390
COURT FILE NO.: Perth 868-13
DATE: 20150119
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Coleen Schingh, Applicant
AND
Jason Mousseau, Respondent
BEFORE: Blishen J.
COUNSEL: R. Boivin, Counsel for the Applicant
Self-represented
HEARD: by written submissions
COSTS ENDORSEMENT
Introduction
[1] The applicant filed a motion requesting numerous temporary orders relating to child support and post-secondary education expenses for one child; the expenses and possession of the jointly owned home and spousal support.
[2] The motion was argued on only the following issues:
(1) whether Mr. Mousseau was a “parent” to Mary born February 9, 1996 as defined under s. 1 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Mary resided with the parties in the jointly owned home in Carleton Place during the nine year common-law relationship from January, 2004 to February 18, 2013.
(2) if Mr. Mousseau was determined to be a parent, his income for the purposes of child support; and
(3) the appropriate amount of child support and whether there should be a sharing of Mary’s post-secondary education costs.
[3] The remaining issues were not argued but remain before the court.
[4] In the written submissions on costs, Ms. Schingh requests costs as the successful party and supplies a Bill of Costs for the motion totaling $7,429.19. The respondent, Mr. Mousseau, argues that: many of the orders for temporary relief requested were not heard; the applicant refused his earlier reasonable offers to settle and the applicant did not behave reasonably. He does not specifically request an order for costs but asks that there be no costs awarded to the applicant.
Success
[5] Pursuant to sub-Rule 24(1) of the Family Law Rules, O. Reg. 439/07, s. 1 (“FLR”), there is a presumption that a successful party is entitled to costs. Offers to settle are important and can be the yardstick by which to measure success. They are significant in determining both liability for costs and quantum. See Osmar v. Osmar, 2000 20380 (ON SC), [2000] O.J. No. 2504 (Sup. Ct.).
[6] As stated by Mackinnon, J. in Neill v. Egan, 2000 21156 (ON SC), [2000] O.J. No. 1567: “Both parties should make an offer covering in detail all aspects of the case. Even where the case appears intractable, an offer can serve to settle some issues or narrow the issues, with the saving to time and effort for all concerned.”
[7] Prior to the motion, Mr. Mousseau provided two offers to settle relevant to the motion issues. Neither of those offers was open at the time of the motion. Nevertheless, they can be considered in deciding whether a party behaved reasonably or unreasonably pursuant to R. 24(5). Ms. Schingh also provided an offer to settle but that offer was not attached to her submissions. At the time of the motion, all previous offers to settle had expired and neither party served an offer to settle the motion.
[8] I find Mr. Mousseau’s earlier offers to settle provided in April, 2014, when he had counsel, to be reasonable and to demonstrate an ongoing attempt to resolve the dispute. However, on the motion, Mr. Mousseau was less successful than his offers.
[9] Overall Ms. Schingh was the more successful party on the motion. She was successful in arguing Mr. Mousseau was a “parent” as defined under s. 1 of the FLA and therefore had an obligation to provide child support pursuant to the Ontario Child Support Guidelines. Further, she was successful in arguing Mr. Mousseau’s income for the purposes of determining child support and in obtaining an order for a contribution to Mary’s post-secondary education costs.
Quantum
[10] Sub-Rule 24(11) sets out the relevant factors in determining the amount of costs as follows:
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.
[11] In this case, although important, I do not find the issues to be particularly complex or difficult. Although Mr. Mousseau argues Ms. Schingh behaved unreasonably I do not find either party to have behaved unreasonably in this case. I find the rates outlined in Ms. Schingh’s counsel’s Bill of Costs and the expenses paid relevant to this motion, appropriate and reasonable. The time outlined in the Bill of Costs to prepare for the motion totaled 34.4 hours. Given that the motion was heard on only a few of the many issues, I find that time excessive and therefore the fees for the motion would be reduced. The disbursements are reasonable.
Conclusion
[12] Counsel for Ms. Schingh submitted a Bill of Costs with a total amount for fees, disbursements and HST of $7,429.19. As previously noted, there were no offers to settle and, given the limited focus of the motion, the time spent in preparation is to be reduced.
[13] In addition, there must be flexibility in examining the factors under sub-Rule 24(11). As the Ontario Court of Appeal noted in Zesta Engineering Ltd. v. Cloutier, (2002) 2002 25577 (ON CA), 21 CCEL. (3d) 161.
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 parties rather than any exact measure of the actual costs to the successful litigant.
[14] This approach is equally applicable in family law cases.
[15] Taking into consideration all the factors noted above, I order Mr. Mousseau to pay Ms. Schingh costs of $3,500 inclusive of disbursements and HST as a fair and reasonable amount under all the circumstances.
[16] I find Mr. Mousseau has the ability to pay these costs and order that he do so within 60 days.
Blishen J.
Date: January 19, 2015
Schingh v. Mousseau, 2015 ONSC 390
COURT FILE NO.: Perth 868-13
DATE: 20150119
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Coleen Schingh, Applicant
AND
Jason Mousseau, Respondent
BEFORE: Blishen J.
COUNSEL: R. Boivin, Counsel for the Applicant
Respondent Self-represented
COSTS ENDORSEMENT
Blishen J.
Released: January 19, 2015