SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 365/13

DATE: 20150908

RE: K.L.D., Applicant

AND

D.A.P., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Applicant without counsel

Lucienne MacLauchlin, for the Respondent

HEARD: In Chambers (Written Submissions)

COSTS ENDORSEMENT

MINNEMA J.

[1] Following a four day trial, I delivered my Reasons for Judgment found at 2015 ONSC 4441. I have now received written submissions on costs. The respondent is seeking partial indemnity costs up to October 10, 2014 of $4,030.90, and full indemnity costs of $7,761.36 afterwards based on an offer to settle. The total of $11,792.26 is inclusive of HST and disbursements. The applicant has not made any submissions of her own.

Law

[2] Pursuant to subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are discretionary. I am to assess the costs guided by Rule 24 of the Family Court Rules, O. Reg. 114/99. There is a presumption that the successful party is entitled to costs (subrule 24(1)). If success is divided, the court may apportion costs (subrule 24(6)). Factors such as offers to settle, reasonableness (including a consideration of all offers to settle), preparedness, and bad faith may also effect entitlement: subrules 24(4), (7), (8), and 18(14).

[3] The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances (Murray v. Murray, 2005 46626 (ON CA), 79 O.R. (3d) 147 (C.A.)). This includes considering the reasonable expectations of the losing litigant regarding costs (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.)). It also includes a consideration of the impact that the cost award will have on the party ordered to pay (see Murray above), and, where applicable, a consideration of its effect on the care, maintenance or interests of children (M.(A.C.) v. M.(D.), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.), Quinn v. Nicholson, 2013 ONSC 1125.

[4] As costs are to be decided promptly after each step in the case (subrule 24(10)), they are not awarded for preliminary steps (conferences and motions) that have been addressed by another judicial officer where the costs have not been reserved: see Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10. This does not mean, however, that the costs order should only relate to matters concerning the hearing. As clarified in Houston v. Houston, 2012 ONSC 233, 12 R.F.L. (7th) 115 (Div. Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule.

Analysis

Success

[5] Regarding subrule 24(1), the main issues at trial were custody and access, and the respondent had complete success. He did not get what he sought on the child support issues, but in my view he was still substantially successful overall and is presumptively entitled to costs; apportionment is not warranted.

Offers

[6] The respondent made a formal offer to settle. Regarding custody and access, it mirrors my judgment. However, he did not do as well as offered on the child support issue, and indeed failed to address past support at all notwithstanding that the offer was to resolve “all outstanding issues in these proceedings.” The requirements for an Offer to Settle that has direct cost consequences are set out in Rule 18. To trigger full recovery costs the respondent must meet the burden of proving he has done as well or better than all the terms of any offer: see Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.) at para. 14, and Rule 18(15). I find that he has not done so. However, I have still considered his offer in assessing reasonableness pursuant to subrules 18(16) and 24(5).

Bad Faith

[7] There is no allegation of bad faith as a consideration in assessing costs.

Factors in Costs: Subrule 24(11)

Importance, Complexity or Difficulty of the Issues

[8] The issues in this case were not particularly complex. They were important, as the best interests of a child were involved.

Reasonableness

[9] Both parties were reasonable in agreeing on many of the smaller issues at the start of the trial. However, as noted in my decision, both parties have made some poor decisions. The respondent’s offer to settle did not meet the Rule 18(14) test but was very reasonable regarding the main issues; still, I am not convinced that an award of costs above the usual partial indemnity scale is in order.

Applicant’s Lawyer’s Rates, Time Properly Spent, Expenses Incurred (Subrules 24(11)(c), (d), and (e))

[10] The rates claimed by the respondent’s counsel, the time spent, and expenses incurred are all very reasonable in my view, subject to the following.

[11] The respondent has claimed fees of $1,180 for a May 29, 2014 account from a previous counsel. However, upon review of that account, the actual amount was $17.18. The source of the confusion was the way the document is laid out; the larger figure was a trust transfer and payment, not new fees.

[12] Both the respondent’s current and previous counsel included fees for conferences totaling about $1,000. Approximately $300 was also being sought for an argued motion. Those costs were not reserved to trial. Per Islam v. Rahman above, they are not to be included.

[13] By my rough calculations, the full costs after the above adjustments are around $9,400 all inclusive.

Any Other Relevant Matter

[14] As noted above, the financial situation of the parties is to be considered. Both earn good incomes. The applicant is currently receiving unemployment insurance benefits but that was expected to be temporary. Historically she earned more than the respondent. Overall, the relative financial position of the parties is not a major factor in my decision, given the rather modest amount of costs being claimed.

Analysis/Summary

[15] Having regard to the factors and considerations outlined above, I find that $6,200 is a fair and reasonable amount of costs. This is the amount noted in para. 13 above on a partial indemnity basis and in my view is in the very low range of what the applicant should have reasonably expected.

Set Off

[16] The respondent is asking that the costs order be set off against the child support arrears. By my calculations this will still leave a balance owing by the respondent to the applicant, along with his current ongoing support obligation. There is authority for granting such a request: see Burisch v. Gosal, 2007 ONCA 569 at para. 12, and Collins v. Garmoe, 2012 ONCJ 643 at para. 39. Given the income of the applicant and her new living arrangement, there is no suggestion that the child would suffer by such an order. Further, the parties are now in a shared parenting arrangement regarding the child, and eliminating competing processes with respect to these debts seems to me to be only reasonable. I may have had a different view if the result was an off-setting of the costs against ongoing support.

Decision

[17] The respondent shall have his costs of $6,200 inclusive of HST and disbursements, to be set off against the child support arrears.

Mr. Justice Timothy Minnema

Date: September 8, 2015

NAPANEE COURT FILE NO.: 365/13

DATE: 20150908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.L.D.

Applicant

– and –

D.A.P.

Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: K.L.D., self-represented

Lucienne MacLauchlan, for the Respondent

COSTS ENDORSEMENT

Mr. Justice Timothy Minnema

Released: September 8, 2015