L.J. v. P.J., 2015 ONSC 961

L.J. v. P.J., 2015 ONSC 961

COURT FILE NO.: 07-6891M

DATE: 20150209

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L.J.

Applicant

v.

P.J.

Respondent

BEFORE: Conlan J.

COUNSEL: Ms G. McClelland, for the Applicant

Mr. I. Robertson, for the Respondent

HEARD: February 5, 2015

ENDORSEMENT ON COSTS

I. INTRODUCTION

The Background

1The parties started living together in August 1997. They were married in January 2000. They separated for the first time in February 2007. They briefly reconciled in December 2010 and then separated for the last time in January 2011.

2There are four children in the family unit, currently aged 21, 16, 13 and 11 years.

3The Applicant wife (“L.J.”) commenced her Application in November 2007. Needless to say, the case has a long and torturous history.

4On December 14, 2007, O’Connell J. made a Temporary Order which required the Respondent husband (“P.J.”) to pay $1283.00 per month in child support, plus $400.00 monthly towards section 7 Guidelines expenses, plus $2000.00 per month in spousal support. Those awards were based on an attributed total annual income for P.J. of $60,000.00.

5In mid-December 2010, the parties signed an agreement (a Memorandum of Understanding which served, essentially, as a prelude to Minutes of Settlement or a Consent which could, in turn, be stamped for approval by the Court).

6The agreement included a plan to reconcile. The reconciliation, however, lasted only a few weeks. After much delay and procedural wrangling between the parties, certain components of the agreement were enshrined in a Final Order made on April 25, 2014.

7The wife has remarried.

The Motions

8On December 12, 2014, at Owen Sound, I heard three Motions.

9P.J. sought (i) to terminate the spousal support and section 7 expenses provisions ordered by Justice O’Connell and (ii) to vary the child support term.

10Further, he sought, in a subsequent Motion, similar relief: (i) to terminate the spousal support provision and (ii) to vary the child support and section 7 expenses terms ordered by O’Connell J.

11L.J. sought to determine the arrears owing by the husband for child support, section 7 expenses and spousal support. Further, the wife requested that P.J. pay ongoing child support in the amount of $1885.00 monthly, plus 79% of section 7 expenses, plus $161.00 per month in spousal support.

My Decision on the Motions

12In Reasons reported at 2014 ONSC 7241, I, among other things, (i) ordered that all support arrears owing by P.J. as of the date of the agreement of the parties (mid-December 2010) are rescinded; (ii) fixed the arrears of child support owing by the husband since January 2011 at $74,460.00 plus $27,801.00 for section 7 expenses; (iii) fixed P.J.’s income at $96,000.00, less proper tax deductions, for purposes of child support that shall be paid by him commencing January 2015; (iv) fixed L.J.’s income at the agreed upon minimum wage amount for purposes of the parties’ respective proportionate shares of section 7 expenses commencing January 2015; (v) ordered that the husband shall pay spousal support in the amount of $500.00 per month between January 2011 and the end of December 2013; (vi) ordered that, commencing January 2015, P.J. shall pay mid-range spousal support per the Spousal Support Advisory Guidelines based on the incomes that I had fixed for the parties (indicated above); and (vii) fixed the amount paid by P.J. to the Family Responsibility Office (“FRO”) at $76,424.75 as of September 2014.

13At paragraph 92 of my Reasons, I indicated that “success has been somewhat divided on these three Motions, at least in terms of the contentious issues at the time of argument”.

14Not surprisingly given the history of this case, the parties have been unable to agree on costs. A teleconference was held between counsel and myself on February 5, 2015, at which time I heard submissions on that issue.

II. THE POSITIONS OF THE PARTIES ON COSTS

The Wife, L.J.

15The wife has filed a Costs Outline showing $9,090.00 for fees, plus $317.25 for disbursements, plus tax, for a total of $10,630.19, on a substantial indemnity basis.

16L.J. also filed a Bill of Costs with time dockets and copies of Offers to Settle: Offer made by P.J. dated November 27, 2014, not severable and open for acceptance until one minute after the start of the arguing of the Motions; Offer made by P.J. dated December 3, 2014, not severable and with the same deadline for acceptance; Offer made by L.J. dated December 1, 2014, severable and open for acceptance until two minutes after the commencement of the hearing; and Offer made by L.J. dated December 8, 2014, not severable and with the same deadline for acceptance.

The Husband, P.J.

17The husband filed a Bill of Costs at the time that the Motions were argued, seeking a total sum of $10,550.00 on a partial indemnity basis.

18Today, the husband’s position is that there ought to be no order as to costs.

III. ANALYSIS

The Basic Legal Principles

19On quantum of costs, the overriding principle is to make an award that is fair, just and reasonable in all of the circumstances including what the unsuccessful party would have expected to pay. It is not simply a mechanical exercise. Boucher, et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).

20The objectives are to partially indemnify successful litigants, to encourage settlement and to discourage and sanction inappropriate conduct by litigants. Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.).

21A Court shall consider the factors outlined in Rule 24 of the Family Law Rules and, where applicable, the provisions regarding offers to settle outlined in Rule 18.

Offers to Settle

22It is clear that the husband did not equal or exceed his Offer to Settle dated November 27, 2014. That is because the said Offer had no provision for spousal support in favour of the wife.

23The same observation applies to P.J.’s Offer to Settle dated December 3, 2014.

24It is clear that the wife did not equal or exceed her Offer to Settle dated December 1, 2014 as the said Offer (Part I) provided for a much higher amount of spousal support payable by P.J. since January 2011. Further, the said Offer (Part II) provided for a fixed amount of section 7 expenses to be paid by the husband per month.

25The latter observation applies equally to the wife’s Offer to Settle dated December 8, 2014. In addition, the wife’s Offer to Settle dated December 8, 2014 provided that the husband pay spousal support for five years. Although I did not set a termination date for the spousal support in my Reasons for Decision, as I made clear at paragraph 69 therein, I think that it is very unlikely that any Judge would continue the spousal support for nearly that long.

26Thus, neither party met or exceeded her/his Offer to Settle. The costs consequences in subrule 18(14) do not apply. I disagree with the wife’s submission to the contrary.

27That having been said, I recognize that I may still consider the Offers to Settle in the overall analysis of the costs issue: subrule 24(11)(f) empowers the Court to consider any relevant matter. Further, subrule 18(16) makes it clear that the Court may consider, in assessing the factors under Rule 24, any written offer to settle, even if subrule 18(14) does not apply.

28The purpose of Rule 18(16) is clear. Family law litigation is expensive, time-consuming and stressful. Offers to settle should be encouraged.

Who was Successful?

29The starting point, before considering quantum, is to decide who was successful.

30If success was divided, the Court may apportion costs as appropriate – subrule 24(6). Very often, however, in cases of divided success, no costs are awarded to either party.

31Determining whether success was divided, more or less, is not a scientific exercise. A case where it could be said that success was divided between the parties on a precisely equal basis, in terms of issues and time spent, would be a rare species indeed.

32In ordinary language, the question is, considering all of the circumstances including which party was successful on which issue(s), the importance of each issue and the time spent on each issue, was overall success on that step in the case divided evenly, give or take a little, between the parties?

33In this case, the answer to that question is yes.

34The parties agreed on the rescission of the support arrears owing by P.J. as of December 2010.

35The parties were relatively close on the issue of child support, including section 7 expenses, owing by P.J. since January 2011. That issue was important, however, little time was spent on it in argument by counsel. In the end, the wife was more successful than the husband.

36On the issue of go-forward child support payable by P.J., the order made was between the two positions advanced by the parties. It is a “wash”.

37The same applies to spousal support owing by the husband since January 2011 – it is a “wash”. Much time was spent on that issue by counsel in argument. It appeared to be the most important issue to both parties. If one was forced to pick a winner, it would be the husband. L.J. was awarded considerably less than what she sought.

38Regarding the issue of what amount of money P.J. had paid to FRO as of September 2014, the husband was more successful than the wife, although little time was spent on that issue at the hearing of the Motions.

39All in all, taking the three Motions as a whole, overall success was roughly evenly divided between the parties.

40Further, neither party achieved a result materially closer to her/his Offer to Settle. I disagree with the wife’s submission to the contrary.

41Both parties acted responsibly in making settlement efforts. Neither party’s efforts in that regard were more reasonable than the other’s.

42In terms of whether either party acted unreasonably, I agree with the wife that P.J. failed to comply with the outstanding costs order. And I agree with the wife that P.J. is likely more to blame than her for the inordinately lengthy delay in converting the December 2010 settlement in to a Final Order.

43I have taken that unreasonableness on the part of the husband in to consideration. It does not change my ultimate view, however, that each party ought to bear her/his own costs.

44For clarification, I have done nothing to erase or amend the prior costs order against P.J. That obligation remains.

A Second Reason to Make No Order as to Costs

45I would hasten to add that there is another reason for ordering no costs in these circumstances. This case has some similarities to that in the recent decision of the Court of Appeal for Ontario in Ludmer v. Ludmer, 2014 ONCA 827.

46In that decision, the Court of Appeal stated this at paragraph 56: “[a] trial judge has a broad discretion in awarding costs, both as to quantum and as to payor and recipient. Here, success was divided and, as the trial judge noted, 'both parties appear to have [waged] their litigation war without heed to the costs’ and in ‘an all-out, ruinous’ fashion. I see no error in law or in principle in his decision that ‘[e]ach party shall take responsibility for their own choices in the conduct of this litigation and bear their own costs’”.

47Here, likewise, the parties ought to bear their own costs. The long and seemingly never-ending history of this case, and each party’s penchant for litigation (illustrated by the density of the Continuing Record) are depressing.

IV. CONCLUSION

48For the foregoing reasons, no costs are ordered.

Conlan, J.