Court File and Parties
CITATION: Booth v. Booth, 2016 ONSC 2707 COURT FILE NO.: FC-14-1475 DATE: 2016/04/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUMELA KABIR BOOTH, Applicant AND RONALD ARTHUR BOOTH, Respondent
BEFORE: Madam Justice L. Sheard
COUNSEL: John H. Yach, Counsel for the Applicant Wade L. Smith, Counsel for the Respondent
HEARD: Written Submissions on Costs
ENDORSEMENT ON COSTS
SHEARD J.
[1] This was a motion for judgment brought by the applicant mother in accordance with the agreement the parties had reached on the issues of custody and access of the two children of the marriage. The applicant also sought interim and retroactive spousal support; child support based on the respondent’s actual income and an order that the respondent pay his pro rata share of the children’s special and extraordinary expenses. The respondent brought a cross-motion for an order for the appointment of the Office of the Children’s Lawyer to represent the children and for costs on a substantial indemnity basis plus HST.
[2] On December 9, 2015 I granted the applicant mother’s motion for summary judgment and found that the Offer to Settle constituted a binding agreement between the parties. I also determined that the applicant was entitled to support and order the respondent to pay her support retroactive to the date of her application without prejudice to her right to seek support retroactive to the date of separation. I further determined the incomes of the parties upon which the child support would be calculated and ordered those same incomes to be inputted into the support software programs used by the parties’ counsel to determine the amount of spousal support. I ordered the spousal support to be in the SSAG mid-range.
[3] At the hearing, counsel agreed that, with my order in hand, they would be able to agree on the appropriate amount to be paid by the respondent for s. 7 expenses and would also be able to calculate the exact amount of spousal support, which was to be determined after taking into account the child support payable. On the latter issue, until the parties had my decision regarding custody and access, they could not determine the Child Support Table amount.
[4] In my endorsement I noted that the applicant had been successful and was entitled to her costs. I invited counsel for the parties to provide brief submissions on costs in the event that they could not agree on costs. I have received those submissions.
Positions of the Parties
[5] The applicant mother seeks her costs as the successful party. She asks for costs on a partial indemnity basis in the total amount of $4,607.30.
[6] The respondent father argues that his client was successful on the issue of ongoing support and that, if one considered the total amount of support payable, it is arguable that it was the respondent who was successful on the motion. He also refers to his offer to settle, which he claims is better than the result achieved by the mother on the motion.
[7] I have considered the arguments put forth by the respondent and note that:
(a) As set out in my Endorsement of December 9, 2015, I awarded the applicant spousal support retroactive to July 1, 2014, based on the SSAG mid-range and using the parties’ incomes as set out in my Endorsement;
(b) I understand from Mr. Smith’s costs submissions, that the parties agreed that, applying my decision to the support software, monthly spousal support payable from July 1, 2014 to December 1, 2014, would be $2,332.00;
(c) The respondent’s offer did not include payment of retroactive support to July 1, 2014;
(d) Based on the parties’ 2015 incomes as set out in my Endorsement, I understand from Mr. Smith’s costs submissions that the parties agreed that the 2015 monthly spousal support (Mid-Range) would be $1,921 and child support $2,387 for a gross amount of $4,308, before taxes.
(e) The respondent has served an Offer to settle the motion by which he had agreed to pay monthly spousal support as of July 1, 2015 in the amount of $1,300 and child support of $2,445.00 plus $100.00 per month toward s.7 expenses.
[8] The respondent argues that his offer is better than what was awarded. He says that the respondent was successful in that his offer for child support exceeded the amount payable, calculated as per my Endorsement. Using his figures, it does appear that, after taking into account spousal support, the respondent’s offer respecting child support exceeded the amount payable by $58 per month.
[9] The respondent also states that his offer to settle includes a monthly payment of $100 toward the s. 7 expenses and that I made no award for s. 7 expenses in my Endorsement.
[10] In fact, as noted in paragraph 10 of my Endorsement, counsel agreed that I need not fix the amount to be paid in extraordinary expenses as there was an expectation that they could and would be agreed to once I had determined the amount of spousal support.
[11] Accepting that the respondent’s offer could be read as offering to pay $100 per month for the s. 7 expenses, it may be accurate that the amount offered by the respondent for child support exceeded the amount payable in accordance with my Endorsement. However, I am not clear that when the respondent offered to pay “$100 per month towards s.7 expenses” he means that he will not, in the future, require proof of those expenses and a future readjustment.
[12] Even if the respondent’s offer to pay $100 per month is read as meaning that he would not require a future reconciliation of amounts actually spent on s. 7 expenses, it cannot be said that the respondent’s offer, considered as a whole, exceeded the amount awarded to the applicant. To be fair to the respondent, he acknowledges that, after taking into account income tax in the 2015 tax year, the applicant receives a net benefit of $3,665.00, which is close to the respondent’s offer of $3,422.00.
[13] I remain of the view that the applicant was successful on the application and is entitled to her costs calculated in accordance with the Family Law Rules, O. Reg. 114/99 (the “FLR”).
Factors
[14] Rule 24 of the FLR govern the award of costs. Rule 24(1) creates a presumption that a successful party is entitled to costs.
[15] The FLR also require the court to consider the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; bad faith of a party; the lawyer’s rates; the time properly spent on the case; expenses properly paid (FLR, 24) and offers to settle (FLR 18).
Success
[16] On the issues of custody and access and the enforcement of the settlement agreement, the applicant was successful. The respondent opposed enforcing the settlement and sought different custody and access terms which would have reduced his child support obligations and affected the amount he was liable to pay in spousal support.
[17] On the issue of spousal support, the respondent opposed spousal support being retroactive to July 2014. His offer only contemplated spousal support payments as of July 1, 2015. On that issue the applicant was successful.
[18] The respondent objected to using the applicant’s T-4 slips as evidence of her 2015 income and sought to rely on her 2014 income return. That year the applicant’s income was higher than in 2015. On that issue the respondent was unsuccessful.
[19] The issues on which the parties were able to reach agreement should be cost-neutral to them.
[20] Overall, the applicant was successful in her application and obtained a result that was better than offered by the respondent. She is entitled to her costs.
Complexity and Importance of the Issues
[21] The matter was of moderate complexity and difficulty. The parties were required to submit Factums and the issue of the enforceability of the settlement agreement was outside the usual scope of motions for custody, access, and support.
Unreasonable Behaviour or Bad Faith
[22] Although I did find that the applicant was entitled to an interim order for spousal support retroactive to July 1, 2014, I do not conclude that the respondent acted unreasonably in resisting that claim. However, I do find that he acted unreasonably in refusing to honour the settlement the parties had spent months negotiating. I do not go as far as concluding that the father sought to resile from the agreement for the purpose of reducing the amount he might be required to pay in child support, it was his refusal to honour this negotiated agreement, which led, in part, to the motion brought by the applicant.
Amount the Unsuccessful Party would Reasonably Expect to Pay
[23] Counsel for the respondent did not provide any submissions with respect to the amount of time and the hourly rate charged by counsel for the applicant. Therefore, I am not able to compare the time he spent and his hourly rates charged to the respondent to the Bill of Costs submitted by the applicant.
[24] I have looked at the Bill of Costs submitted by the applicant. The applicant seeks her costs on a partial indemnity basis in the amount of $4,607.30, inclusive of HST and disbursements. I note that most of the time was spent by John H. Yach who was called to the bar in 1993. His partial indemnity hourly rate is $300. His docketed time includes 6.2 hours to prepare for and attend at the motion. There was .5 of an hour docketed by Thomas S. Finlay, who I assume is a junior lawyer in Mr. Yach’s office. Mr. Finlay was called to the bar in 2011 and the fees allocated to him total $82.50 identified as time he spent researching “binding offers to settle”.
[25] Both parties prepared Factums. The applicant’s factum also included a brief of authorities. The records available to me indicate that argument on the motion took approximately 2.7 hours. As this was a regular motions day, counsel were required to be in court from 10 a.m., although my records indicate that this case was not reached until close to 11 a.m. I am satisfied therefore that the allocation of 6.2 hours to prepare for and to attend the motion is reasonable.
[26] In addition to the provisions of the FLR, I am guided by the recent Court of Appeal decision in Berta. v. Berta, 2015 ONCA 918. The court in Berta reiterated that costs in family law cases should generally approach full recovery so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result (at para. 92, citing with approval from Biant v. Sago (2001) 2001 28137 (ON SC), at para. 20.)
Disposition
[27] For the reasons set out above, I find that the partial indemnity costs claimed by the applicant are reasonable and proportional to the issues and to the result. Accordingly, I award her costs in the amount of $4,607.30, inclusive of HST and disbursements to be paid by the respondent father.
The Honourable Madam Liza Sheard
Date: April 22, 2016
CITATION: Booth v. Booth, 2016 ONSC 2707 COURT FILE NO.: FC-14-1475 DATE: 2016/04/22
ONTARIO SUPERIOR COURT OF JUSTICE
RE: RUMELA KABIR BOOTH, Applicant AND RONALD ARTHUR BOOTH, Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: John H. Yach, Counsel for the Applicant Wade L. Smith, Counsel for the Respondent
ENDORSEMENT ON COSTS
Released: April 22, 2016