SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-10-069630-00
DATE: 2015 10 16
RE: Carol Alexander - and – Owen George Alexander
BEFORE: LeMay J.
COUNSEL: Carol Alexander, Self-represented
F. Wood, for the Respondent
COSTS ENDORSEMENT
[1] The Applicant, Carol Alexander (“Carol”) and the Respondent, Owen Alexander (“Owen”) attended before me for a three day trial in June of this year, and my decision was released in early September. The remaining issue to be determined is costs.
[2] Carol argues that either each party should bear their own costs, or that Owen should pay Carol the costs of the trial. She takes this position for a number of reasons. First, Owen did not admit that the children had an Individual Education Plan. Second, Owen did not admit that Carol paid the property taxes on the matrimonial home. Third, Owen withdrew money from the credit line on the matrimonial home. Finally, Owen has the ability to pay Carol’s costs.
[3] Owen, on the other hand, argues that he should be entitled to costs in this matter for a number of reasons. First, Owen was more successful at trial than Carol was. Second, the positions that Owen took were more reasonable than the positions taken by Carol. Finally, Owen argues that a considerable amount of time was taken up by issues raised by Carol where she had no prospect of success. Owen also directs me to the factors to be considered in deciding costs under the Family Law Rules.
Relevant Legal Principles
[4] I have reviewed and considered the legal principles, particularly the sections of the Family Law Rules that have been cited to me. I find the following principles to be of assistance in fixing the costs for this motion:
a) Under Rule 18(14), a party who made an offer is entitled to costs unless a Court orders otherwise, if the Court’s decision is as favourable or more favourable than the offer.
b) If a party has acted in bad faith, then costs will be awarded against that party (Rule 24(8) of the Family Law Rules).
c) Costs are to be assessed on the basis of what is fair and reasonable to the losing party- see Rossi v. Rossi ([2005] O.J. No. 5606 (S.C.J.)).
d) Generally, costs are to be assessed by considering the factors enumerated under Rule 24(11), including the complexity of the matter, the reasonableness or unreasonableness of each party’s behaviour, the lawyers rates, the time spent on the case, and any other relevant matter.
[5] Of these principles, I consider the conduct of the parties and the complexity of the matter to be the most relevant considerations. I will address those, as well as some issues specifically raised by the parties, in the next section.
Application of the Principles
Carol’s Additional Evidence
[6] In her costs submissions, Carol filed a document that went to the question whether Andrew, one of the children, had a learning disability. She also filed documentation relating to whether she had paid part of the property taxes. These documents were not filed during the trial, in spite of the fact that Carol had the directions for self-represented litigants, which clearly set out the requirements for document production.
[7] Carol has provided these documents in an effort to demonstrate that Owen did not acknowledge that one of the children had an IEP and had not acknowledged that Carol paid the property taxes during a particular period. As a result, Carol argues that I should take these “facts” into account in assessing costs for this case.
[8] I am not prepared to accept Carol’s submissions on these issues. If Carol was going to rely on these documents as proof of something, then she was obligated to file them during the course of the trial. She did not do so, and cannot advance new evidence on the merits of the case at this point. The reason that I have put facts into quotes in the previous paragraph is that Carol’s documents do not establish facts. The facts on this case have been found in my decision, and cannot be relitigated at this stage.
[9] In addition, even if Carol had proven these “facts”, it is unlikely that they would have changed the outcome of the case in any meaningful way.
[10] Finally, in her reply submissions, Carol seeks to re-argue the issue of her delay in commencing this Application. I determined the significance of this delay in my decision already. I found that Carol had brought her proceeding late, and done so in bad faith. Even if I had the jurisdiction to change my conclusion (which is doubtful), I do not intend to change it on the basis of written submissions that reiterate arguments that have already been made.
The Family Law Rules- Application
[11] As noted above, there are a number of factors under the Family Law Rules that the Court will consider in assessing costs. The most relevant in this case are the importance, complexity or difficulty of the issues, and the reasonableness of each party’s behaviour in the case.
[12] First, in terms of the importance, complexity or difficulty of the issues, I note two points. First, the importance of these issues was considerable. Carol was seeking retroactive support that would have amounted to in excess of $100,000.00 if I had ordered it. Indeed, it is possible it could have amounted to more than $200,000.00.
[13] In addition, there was some complexity to this case. Specifically, there was a moderately complex issue about whether the parties had an informal agreement. This issue was made more complex by the significant amount of time that had passed between the time the parties separated and the time that this Application was filed.
[14] When the question of importance, complexity or difficulty of this case is considered, it favours an award of costs in Owen’s favour. On both of the issues that made this proceeding more difficult, Owen was substantially successful.
[15] This brings me to the reasonableness of each party’s behaviour in the case. It is worth noting that there is a separate Rule that deals with the consequences of a party’s bad faith conduct. Rule 24(8) requires that if a party has acted in bad faith, then “the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.” This Rule lends some support to a finding that Carol should pay all of Owen’s costs, as I found the delay in bringing this application was incurred in bad faith.
[16] However, there is also Owen’s conduct to consider. In particular, I had concerns about Owen’s unilateral decision to change the mortgage to a line of credit in 2008. This change resulted in Carol being successful in a portion of her application. In the circumstances, therefore, Rule 24(8) should not be applied to allow Owen full recovery of his costs, but Carol’s conduct remains a significant consideration for the Court in assessing costs.
[17] Finally, in terms of the offers each party filed, it is clear from the materials that neither party was more successful than the Offers to Settle that were served on each other. However, it is also worth noting that overall, Owen’s offers were more reasonable and Owen acknowledged that his conduct with the line of credit required some adjustments in the amounts ordered by the Court.
The Results of the Trial
[18] In assessing costs, the question of who was more successful at trial is generally a significant consideration. In this case, Owen was far more successful than Carol in the issues that were put before me. To be clear, Carol was seeking a very significant amount of retroactive spousal and child support. She was advancing her arguments by denying that the parties had reached an informal agreement on support, and by denigrating the role that Owen played in raising the children. She was completely unsuccessful on these issues at trial.
[19] While Owen was required to pay some retroactive child support, he was successful in the major factual issue at trial- whether the parties had an agreement. He was also completely successful in resisting Carol’s claim for spousal support. Further, with respect to the issues relating to the line of credit, Owen made reasonable concessions in his position. Finally, Owen was prepared to make additional concessions on amounts of support to be paid to the children for schooling in the future. He was not required to make these concessions.
[20] In the circumstances, then, I am of the view that Owen was far more successful at trial than Carol was. Therefore, the results of the trial support an award of costs against Carol.
Disposition
[21] As outlined above, I am of the view that Owen is entitled to his costs in this case. I would also note that the costs amount claimed by Owen’s counsel, being a full indemnity amount of $22,221.45, inclusive of HST and disbursements, and a partial indemnity amount of $17,498.05, inclusive of HST and disbursements, are very reasonable amounts.
[22] Owen is not entitled to full indemnity costs for the following reasons:
a) He was not completely successful at trial. Some retroactive child support was ordered against him, and these Orders were made because of unilateral decisions he made about the credit line.
b) Owen did not do better at trial than the offers he served.
[23] In the circumstances, therefore, I am not prepared to award him full indemnity costs. However, I am prepared to award him the full amount of the partial indemnity costs that he has claimed for a number of reasons:
a) Owen was quite successful at trial on most issues.
b) Carol took unreasonable positions at trial, especially relating to the question of whether the parties had an informal agreement respecting support.
c) The amount that Owen is seeking for partial indemnity costs is very reasonable given the length of the trial (three days) and the complexity of the issues to be argued. Paying this amount of costs is something that should be in the reasonable expectation of a losing party.
d) Carol acted in bad faith in delaying her claims for more than ten years. Although the full indemnity provisions of the Rules are not appropriate to apply in this case, Carol’s conduct is still a significant matter for the Court to consider.
[24] In the circumstances, therefore, I award Owen his partial indemnity costs in the sum of $17,498.05, inclusive of HST and disbursements. These costs shall either be paid by Carol within thirty (30) days of the date that this decision is released, or they shall be considered as an adjustment on the disposition of the matrimonial home.
[25] One final issue remains. In her submissions, Ms. Wood quite rightly points out that the date that the mortgage was converted to a line of credit was on May 29th, 2008. As a result, Owen is entitled to a deduction for half of the payments that he made on account of the mortgage between January 1, 2008 and May 29th, 2008. Based on the evidence I had before me, that works out to approximately $4,500.00. If the parties wish to provide me with a more precise calculation, they may do so within 30 days from the date these reasons are released and I will consider it. Otherwise, the final Order will reflect a reduction of $4,500.00 in the amount of support owing by Owen.
[26] I would also note that Carol had the opportunity to respond to Ms. Wood’s submissions on this calculation error and did not do so. As a result, I am not prepared to consider the question of whether a calculation error was made any further. A calculation error was made, and I have outlined the way it will be rectified in the previous paragraph.
[27] The Orders flowing from this decision are as follows:
a) Carol is to pay Owen costs of the trial in the sum of $17,498.05, inclusive of HST and disbursements.
b) The costs in paragraph (a) are either to be paid by Carol within thirty (30) days of the date that this decision is released, or they shall be considered as an adjustment on the disposition of the matrimonial home.
c) The parties may provide precise calculations of the differences in support owing by Owen as a result of the fact that he made mortgage payments to May 29t, 2008 rather than January 1, 2008 within thirty (30) days of the date that this decision is released.
d) If no submissions are received under paragraph c) of this Order within thirty (30) days of the date that that this decision is released, then the final Order will reflect a reduction of $4,500.00 in the retroactive amount of support owing by Owen.
LeMay J.
DATE: October 16, 2015
COURT FILE NO.: FS-10-069630-00
DATE: 2015 10 16
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Carol Alexander
Applicant
-and-
Owen George Alexander
Respondent
ENDORSEMENT
LeMay J.
DATE: October 16, 2015