CITATION: Stevenson v. Stevenson, 2016 ONSC 1493
NEWMARKET COURT FILE NO.: FC-14-46398-00
DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hailey Stevenson
Applicant
– and –
Thomas Shayne Stevenson
Respondent
Debra L. McNairn, for the Applicant
Respondent, Self-represented
HEARD: In Writing
Ruling on COSTS
jarvis j.:
[1] This Ruling relates to costs arising from my Rulings made June 24, 2015 and January 8, 2016 that, among other things, found that the parties had settled their outstanding issues, and temporarily varied an Order for child support based on a material change in the husband’s circumstances.
[2] The wife is seeking costs on a full indemnity basis from and after a February 12, 2015 settlement meeting between the parties in the amount of $18,500.95 comprising fees ($16,000), disbursements ($72.52) and HST ($2,128.43). The husband also seeks full indemnity costs in the amount of $20,545.95, comprising fees ($17,773.75), disbursements ($408.50) and HST ($2,363.70).
[3] The wife delivered an Offer to Settle pursuant to the Rules dated June 5, 2015. That Offer contained terms that reflected the earlier February settlement which my Ruling on June 24, 2015 confirmed. It also provided a time limit for acceptance by the husband without any costs penalty and, if accepted after that deadline, required the husband to pay $6,000 costs.
[4] The husband did not accept the wife’s Offer. He should have. He made no Offer to Settle. He unsuccessfully opposed the wife’s Motion heard on June 17, 2015 and his submissions when my Ruling was issued in January 2016 and to this court in writing on account of costs were little more than an emotional re-argument of the issues already determined, or complaints about counsel and the court process. The husband clearly views himself as a victim but eschews any insight into, and accepts no responsibility for, his actions. He is not entitled to an award of costs. The only issue I need to determine, in my view, is whether costs should be awarded to the wife and, if so, how much.
Law
[5] As observed by the Court of Appeal in Serra v. Serra, 2009 ONCA 395, modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
[6] The overall objective in determining costs is fixing an amount that the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 201, [2004] O.J. No. 2634, 2004 CarswellOnt 521 (Ont.C.A.). Since the primary objective of the Family Law Rules is to enable the court to deal with cases justly, it is incumbent on parties who, by choice or necessity, litigate to act reasonably and in a cost effective manner. This means that family law litigants are responsible, and accountable, for the positions they take in their litigation: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317, and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 (Ont. Ct.).
[7] Rules 24 and 18 dealing, respectively, with costs and Offers to Settle govern litigation conduct and outcomes.
[8] Rule 24 (1), (5) and (11) are relevant, and provide as follows,
(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
- (11) 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.
[9] The provisions of Rule 18 (14), (15) and (16) are also relevant,
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
Analysis
[10] There is no question the wife is presumptively entitled to her costs. Her Offer was made before her Motion was argued on June 17, 2015, and she was entirely successful. The husband could have avoided any exposure to costs had he accepted the Offer by June 12, 2016 in accordance with its terms.
[11] Neither the time spent by the lawyer (37.5 hours, not 39.5 as recorded in her Bill of Costs) nor that of her clerk (5 hours) seem unreasonable given the several form 14B Motions initiated by the husband after the release of my Ruling on June 24, 2015. Both Justices Rogers and Kaufman were obliged to deal with the issues raised and in a three hour Case Conference appearance before Kaufman J. on October 19, 2015 His Honour reserved costs.
[12] The amount of costs to be awarded is subject to the following considerations:
(a) roughly 10 hours of the time expended by the wife’s lawyer predated the Motion heard on June 17, 2015;
(b) the husband was partially successful after my June 24, 2015 Ruling in obtaining temporary relief from his child support obligations;
(c) the settlement that was affirmed on June 24 and finalized in the Ruling made January 8, 2016 referenced the husband’s lamentable history of child and (formerly) spousal support payments; and
(d) as a result of the husband’s litigation conduct his financial circumstances are less robust than those of the wife but, in my view, those are the consequences of his inconsistent positions taken at various steps in the proceedings, and his failure and/or refusal to acknowledge the consequences of his conduct.
[13] Roughly 1/3rd of the wife’s costs were incurred before her Offer to Settle. That Offer demonstrated a reasonable assessment of the issues, the time spent was not unreasonable and, as already noted, the Offer ought to have been accepted by the husband. I am mindful though of the qualification in Rule 18 (14) that allows a court to “otherwise” depart from the usual consequences of failure to accept an Offer that is later captured by Order. The husband’s financial circumstances must be considered although in my view he is largely responsible for them. Accordingly the Order which I propose to make will temper the application of Rule 18 to the costs incurred after June 5, 2015. I do note that a portion of the wife’s costs may be tax deductible to her as they relate to the support issues: Peraud v. Peraud, 2011 CarswellNS 126 (N.S.S.C.).
[14] Therefore, and for the reasons given, an Order shall issue as follows:
(1) The husband shall pay to the wife costs in the amount of $10,000 inclusive of disbursements and HST, payable and enforceable as follows;
(a) The sum of $3,000 forthwith;
(b) The balance, including interest, on or before December 31, 2016.
(2) These costs shall constitute, and be enforced as, a support Order pursuant to section 1 (1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 96, c. 31 as amended.
[15] A Support Deduction Order shall issue.
Justice D.A. Jarvis
Date: March 2, 2016