ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-250
DATE: 2015/11/02
BETWEEN:
Rachel Pitre
Applicant
– and –
Francois Viau
Respondent
Self-represented
Anik Leveille, counsel for the Respondent
Written Submissions received
RULING ON COSTS
LALIBERTE, J.
[1] The Court is asked to rule on the question of costs in regards to a motion heard on September 27, 2015. The motion was brought by the Applicant who is self-represented.
[2] Both parties have filed written submissions in support of their respective positions on the issue of costs.
[3] The essence of the Applicant’s position is that the motion was necessary. She describes a history of the Respondent not abiding by agreements on child support. She refers to the amount offered to be paid for child support arrears as not reflecting the actual amount owed.
[4] The Applicant also raises the point that a significant portion of the motion revolved around the question of custody.
[5] She provided copies of e-mail exchanges between the parties wherein she made an offer to settle.
[6] Counsel for the Respondent is claiming a costs award of $2,020.00, being 50% of the actual costs incurred by him for this motion.
[7] The Respondent claims entitlement to a costs award on the basis that the motion was not necessary since an offer on child support was made by him on September 17, 2015 which was rejected by the Applicant. The amount offered is the amount ordered by the Court at the time of the motion on consent.
[8] Furthermore, the Respondent argues that the other issues raised in the motion were not properly the subject of a motion argued on the basis of affidavit evidence.
[9] The issues for the Court are:
a) Is either party liable for costs?
b) What is the quantum of liability, if any?
THE LAW
[10] A proper determination of costs in family law proceedings requires the Court to reflect on a myriad of factors. It is more than a simple mathematical or mechanical exercise. (Boucher et al v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ontario Court of Appeal). As stated by the Ontario Court of Appeal in Somers v. Fournier 2002 45001 (ON CA), [2002] O.J. No. 2543 at paragraph 17:
“Thus, costs are both a discretionary indemnification device and a mechanism by which abuses of the Court’s processes may be deterred and penalized. Costs are routinely used by Ontario Courts to reward or sanction the conduct of parties prior to and during the litigation process…”
[11] The fundamental purposes of costs rules have been identified as follows:
- To partially indemnify successful litigants for the cost of litigation;
- To encourage settlement;
- To discourage and sanction inappropriate behaviour by litigants.
Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 (Ontario Court of Appeal)
[12] The Court is bound to consider the framework set out in the Family Law Rules. While our Court of Appeal in C.A.M. v. D.M. 2003 18880 (ON CA), [2003] O.J. No. 3707 confirms a degree of discretion, “…It is apparent that the Family Law Rules have circumscribed the broad discretion…” which is granted to Judge’s under section 131(1) of the Courts of Justice Act.
[13] The Family Law Rules which are relevant to this matter are as follows:
Rule 2:
- Court is required to apply rules to promote the primary objective which is to deal with cases justly
- Parties and lawyers are required to help the Court promote this objective
Rule 18:
- The ramification of offers to settle made by a party
Rule 24:
- 24(1): The successful party is presumed entitled to costs.
- 24(2): The presumption of entitlement based on success may be rebutted if successful party acted unreasonably.
- 24(3): In deciding if a party acted unreasonably, Court considers:
➢ Behaviour in relation to issues from the time arose, including whether an offer to settle was made;
➢ Reasonableness of offer made;
➢ Any offer party withdrew or refused.
- 24(6): Costs may be apportioned in accordance with success.
- 24(8): Consequences of a party acting in bad faith.
- 24(11): In setting the amount of costs to be paid by the party who is found to be liable, the Court must consider:
➢ The importance, complexity or difficulty of the issues;
➢ The reasonableness or unreasonableness of party’s behaviour;
➢ The lawyers’ rates;
➢ The time properly spent on the case;
➢ Expenses properly paid or payable;
➢ Any other relevant matter.
[14] The Court must also be mindful of the parties’ relative ability to pay costs. As stated by the Ontario Court of Appeal in Harrington v. Harrington [2009] O.J. No. 827 at paragraph 8:
“We acknowledge that the Respondent’s offer to settle was much closer to the actual award than the Appellant’s. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.”
DISCUSSION
[15] In deciding entitlement to costs, the Court must compare the claims and positions taken by the parties at the hearing of the motion to the result as found in the Court’s decision. This is the fundamental measure of success on the question of costs in family law litigation.
[16] Success must also be seen as relative to the significance of the issue raised. If this is not to be a “simple mathematical or mechanical exercise” as expressed by the Ontario Court of Appeal, then there has to be some measure based on the importance of the issue decided by the Court.
[17] This matter was the subject of a case conference on August 15, 2015. There appears to have been some confusion as to the outcome of this conference.
[18] Justice Lafrance-Cardinal who presided, made the following endorsement:
“Case conference held. Final order to go re: custody and access. Next step is a motion set for September 25, at 10:00 a.m. on issues of child support and child support arrears.”
[19] On September 25, 2015, the Court was advised that this endorsement does not reflect the parties’ intent. A review of the minutes of settlement signed and filed by both parties on August 17, 2015 would support this position. The minutes deal with the Respondent’s access to the child but no mention is made of custody. This remains a live and significant issue between these individuals.
[20] However, what is clear from the Notice of Motion filed by the Applicant following the case conference and the affidavits filed by both parties in view of the motion, is that the collective intent was to argue the three following issues in this motion, namely:
- Custody;
- Child support;
- Arrears in child support.
[21] These issues were the subject matter of resolution discussions and offers to settle made by each party prior to the hearing of September 27, 2015.
[22] At the outset, the Court was advised that the parties had agreed on the amount of ongoing child support. The remaining issues were arrears in child support and custody/access.
[23] Partly through the hearing of the motion it became obvious that the parties were not far apart on the amount of arrears owed by the Respondent and that it would be more efficient for the parties to meet and discuss the numbers raised by each in their respective affidavits.
[24] The question of custody was briefly spoken to. The Applicant is seeking sole custody with the proviso that she would communicate with the Respondent in order to receive and consider his views in regards to significant decisions for the child. However, she wishes to remain the ultimate parent who decides. The evidence strongly suggests that the Applicant has been the de facto custodial parent since the separation.
[25] The Respondent’s view is that the parental arrangement should be joint custody with both parents having a say in the decisions relating to their son Jacob.
[26] Having considered all of the circumstances and the relevant principles, the Court comes to the conclusion that the parties are to bear their own costs for this motion.
[27] Specifically, the Court has considered the following:
− The Court is left with the sense that both parties have acted reasonably in these proceedings in trying to resolve their differences. This is evidenced by the Minutes of Settlement signed at the case conference, the ongoing resolution discussions and offers to settle made by both.
− Neither is seen as being the most successful party when one considers the three issues raised in this motion.
− Both parties had made offers to settle prior to the motion.
− The record is such that the Court finds that both of the parties were intent on proceeding with their respective arguments at the motion and having the Court rule on the three identified issues. The Court rejects the notion that the responsibility for pursuing this motion rests solely with the Applicant and that she should have abandoned the motion once she was offered $578.00 per month as ongoing child support.
− The Respondent had a clear interest in pursuing this motion on the issue of custody. As already noted, the parental arrangement since separation is reflective of what the Applicant is claiming in these proceedings, namely sole custody with authority to decide. By operation of section 20(4) of the Children’s Law Reform Act, his entitlement to custody and the incidents of custody are suspended until a Court order otherwise provides. So that in that sense, the Applicant was successful in maintaining the status quo.
− A parent of a child who is pursuing arrears and ongoing child support and who does so reasonably and fairly is not seen by the Court as acting unreasonably for costs purposes. As stated by the Supreme Court of Canada in D.B.S. v. S.R.G. 2006 SCC 37, [2006] S.C.J. No. 37 at paragraph 103:
“…Recipient parents must act promptly and responsibly in monitoring the amount of child support paid… Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfil their obligations to their children.”
− Much to his credit, the Respondent appears to appreciate the significance of Jacob’s entitlement to his financial support and that he may have historically locked in consistency. These lacks serve to support the steps taken by the Applicant.
CONCLUSION
[28] Therefore, the Court’s ruling is that each party shall bear its own costs for this motion.
Justice Ronald M. Laliberte Jr.
Released: November 2, 2015
COURT FILE NO.: 15-250
DATE: 2015/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rachel Pitre
Applicant
– and –
Francois Viau
Respondent
RULING ON COSTS
Justice Ronald M. Laliberte Jr.
Released: November 2, 2015