Court File and Parties
COURT FILE NO.: OWEN SOUND – 10-7556-00M1 DATE: 2016-05-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.B. Scott Vining, counsel for the Applicant Applicant
- and -
T.B. Daniel Gordon Pole, counsel for the Respondent Respondent
HEARD: March 30, 31 and April 4, 5, 7, 28, 2016
REASONS FOR DECISION ON COSTS
INTRODUCTION
[1] After a six-day family law trial, in Reasons for Judgment reported at 2016 ONSC 2917, I ruled on the father’s Motion to Change the Final Order of Fragomeni J. made on consent in late 2010.
[2] The two main issues at trial were (i) the father’s request for more access with the two children and (ii) child support payable by him, both arrears and ongoing.
[3] On the former issue, the father’s Motion to Change was allowed in part in that he was granted expanded access to the boys. Custody and primary residency were not altered.
[4] On the latter issue, again, the father’s Motion to Change was allowed in part in that his ongoing monthly child support obligation was reduced. There was no retroactive reduction in child support and no reduction in the accumulated arrears.
[5] I invited written submissions on costs in the event that the parties could not resolve that issue. I have received and reviewed those written submissions. Counsel for the mother complains that the father’s submissions were filed late. They were not. At paragraph 109 of my Reasons for Judgment, I specifically directed that either party seeking costs shall file within thirty days of April 29, 2016. The father did so.
THE POSITIONS OF THE PARTIES
The Mother, T.B.
[6] The mother seeks costs to be paid to her in the total amount of $76,750.47, on a substantial indemnity basis.
The Father, M.B.
[7] The father seeks costs on a partial indemnity basis and filed an outline showing a total sum of $39,142.18 (full recovery).
ANALYSIS and CONCLUSION
[8] Costs are discretionary. There are three fundamental purposes of a costs award: (i) to partially indemnify the successful litigant, (ii) to encourage settlement, and (iii) to discourage and sanction inappropriate behaviour by a litigant. The Court must consider what is a fair, reasonable and just amount taking into consideration all of the circumstances including the reasonable expectations of the losing side. Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.).
[9] I have considered subrules 18(14), (15) and (16) of the Family Law Rules. Those provisions are as follows.
Costs Consequences of Failure to Accept Offer
(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).
Costs Consequences – Burden of Proof
(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). O. Reg. 114/99, r. 18 (15).
Costs – Discretion of Court
(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. O. Reg. 114/99, r. 18 (16).
[10] I have considered subrules 24(1), (5) and (11) of the Family Law Rules. Those provisions are as follows.
Rule 24: Costs
Successful Party Presumed Entitled to Costs
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
Decision on Reasonableness
(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. O. Reg. 114/99, r. 24 (5).
Factors in Costs
(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. O. Reg. 114/99, r. 24 (11).
[11] The other items in Rule 24 are also important here. Specifically, this is a case of divided success, at least to some degree. The father was successful on obtaining more access with the children and on reducing his ongoing monthly child support payments. The mother was successful in resisting any change to custody/residency of the children and in opposing any retroactive change to child support and/or any reduction in arrears.
[12] Even if I found that T.B. was more successful at trial than M.B., this is a case where she behaved unreasonably. As I noted at paragraph 17 of my Reasons for Judgment, the mother moved the children to Elmira, Ontario in gross violation of the Court’s November 2012 Order.
[13] This is not a case where a party acted in bad faith.
[14] Arguably, this is a case where costs were caused by the fault of M.B. in not providing timely and fulsome financial disclosure.
[15] Neither party did equal to or better after trial than his or her offer to settle. M.B. had offered to pay ongoing child support based on an annual income below that which I found, $50,000.00. T.B. offered to settle by reverting entirely to the Final Order of Justice Fragomeni made in December 2010.
[16] In all of the circumstances, particularly (i) the mixed success at trial, (ii) the fact that neither party is absolved of bad conduct in the past, and (iii) the fact that neither party met or exceeded his/her offer to settle, the only just and reasonable decision on costs is to make an order that each side shall bear its own costs. That is my decision.
[17] Nothing herein disturbs any prior costs award made during the course of the proceeding.
May 27, 2016 The Honourable Mr. Justice C.J. Conlan
Conlan J.