Court File and Parties

COURT FILE NO.: FC-05-2668-10 DATE: 20160706 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID WILLIAM LAGROVE Applicant – and – MARNY LAGROVE Respondent

Counsel: Ross Stewart, counsel for the Applicant Jodi R. Fleishman, counsel for the Respondent

HEARD: In writing

Costs ENDORSEMENT

Shelston J.

[1] The respondent (“mother”) seeks costs of $34,547.34 inclusive of fees, disbursements and HST. The applicant (“father”) submits that the mother’s costs should be in the range of between $4,500 and $6,000 plus disbursements and HST. The issue is what amount of costs is the mother entitled to receive.

Proceedings

[2] The father commenced a Motion to Change on March 16, 2015 seeking the following relief:

a. An order to terminate child support for his daughter Charly on her 18th birthday, being November 26, 2014;

b. an order that was based on his annual income of $72,447.00, he would pay table child support for the other child, Cole, in the amount of $660.31 per month;

c. an order terminating his contribution to extraordinary expenses for both children as of 2012;

d. his wish to immediately resume unsupervised access to both of his children on a schedule to be determined following consultation with both children; and,

e. costs

[3] In response, the mother sought the following relief:

a. an order dismissing the father’s Motion to Change to terminate child support for Charly;

b. an order dismissing the father’s Motion to Change to terminate extraordinary expenses as of 2012 and ordering that his monthly payments of $192.00 towards extraordinary expenses continue;

c. an order that, in accordance with the table, the father provide child support to the mother for Charly and Cole in monthly installments of $1,071.00 commencing May 1, 2015;

d. an order that the father pay the mother arrears owing of $5,919.60 at the rate of $500.00 per month; and

e. costs of $3,797.74, incurred by her in responding to an application commenced by the father in September 2014 and withdrawn by him on March 16, 2015; and,

f. costs of this action on a substantial indemnity basis.

Decision of This Court

[4] I made the following order:

a. I found that the eldest child, Charly, remained “a child of the marriage” and that she was entitled to child support and ordered table child support for the two children in the amount of $1,071.00 per month.

b. I ordered that the mother provide to the father an update of any income earned by Charly through employment or any material change in her circumstances within 14 days of the commencement of such employment or any material change in her circumstances;

c. I ordered the father to pay the mother the sum of $2,000 for the Motion to Change that he discontinued in 2015;

d. I ordered the father to pay back the arrears of support of $5919.60 at $300 a month;

e. I refused to vary the father’s access to the children;

f. I dismissed the father’s request to terminate his contributions to section 7 expenses retroactive to 2012; and,

g. I ordered the mother provide the father by June 30 of each year a list of section 7 expenses and the related receipts incurred by the mother with respect to the children. The current expenses incurred shall not require the consent of the father, but any new section 7 expenses shall require the consent of the father before his liability is attached. In the event that the father does not consent, the mother is at liberty to apply to this Court for adjudication.

[5] Just prior to the motion being argued on May 3, 2016, the father admitted for the first time that Charly was entitled to support but that the question was the quantum of child support taking into consideration that she is over 18 years of age, her needs and her sources of income such as the Ontario Disability Support Program.

Parties’ Positions

[6] The mother submits that she is entitled to substantial indemnity costs. She argues that she was entirely successful on the issues before the court, that she made two Offers to Settle dated June 1, 2015 and September 9, 2015 in which she was prepared to settle for less than was ordered by this Court, that the only offer sent by the father was unreasonable; that the father acted unreasonable in the position he took in this proceeding; that the hours spent were reasonable and necessary and that the father’s vexatious nature in bringing nine motions against the mother in the last 10 years should be taken into consideration by this Court in setting the costs.

[7] The father’s position is that the mother was successful in obtaining an order for full table child support for the two children and for obtaining an order for the payment of the child support arrears on an expedited basis, but that the father was also successful.

[8] The father argues that he achieved success in obtaining an order requiring the mother to keep him apprised of any income earned by Charly and of any material change in circumstances as well as ordering the mother to provide a list of all section 7 expenses with receipts by June 30 of each year and that she had to seek and obtain the consent of the father prior to incurring any new section 7 expenses.

[9] Based on that submission, the mother should only be entitled to partial indemnity costs. He argues that he was reasonable in taking the position that he took, and that the substantial indemnity costs being sought are excessive and the expenditure of time by counsel for the mother was excessive on a relatively routine case. He claims that the mother should receive costs in the range of $4,500 and $6,000 exclusive of HST and disbursements of $678.91.

The Law

[10] Under Rule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. Rule 24(11) states that a person setting the amount of costs shall consider:

(i) the importance, complexity or difficulty of the issues;

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case;

(iii) the lawyer’s rates;

(iv) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(v) expenses properly paid or payable; and

(vi) any other relevant matter.

[11] The award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings as stated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

[12] I am guided by the principles set out in the recent decision of Justice Pazaratz in Jackson v. Mayerle, 2016 ONSC 1556, 73 R.F.L. (7th) 278, where he stated the following at paras. 91 to 94:

91 Even where the "full recovery" provisions of the Rules are triggered — either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith — quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318 (Ont. C.J.). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo, 2015 ONSC 3327 (Ont. S.C.J.). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M. (C.A.) v. M. (D.) (supra); Scipione v. Del Sordo (supra).

92 In Biant v. Sagoo, [2001] O.J. No. 3693 (Ont. S.C.J.) Justice Perkins stated:

The preferable approach in family law cases is to have cost recovery 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.

93 In Sepiashvili v. Sepiashvili (supra) Justice Wildman J stated at paragraph 20:

...Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner.....

94 The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. Pagnotta v. Brown, [2002] O.J. No. 3033 (Ont. S.C.J.); Gale v. Gale, 2006 CarswellOnt 6328 (Ont. Div. Ct.).

[13] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, the court held that family law costs rules are designed to foster three important principles:

a. to partially indemnify successful litigants for the cost of litigation;

b. to encourage settlement; and

c. to discourage and sanction inappropriate behaviour by litigants.

Analysis

Success

[14] I find that the mother was substantially successful at this motion while the father was completely unsuccessful on all the relief that he claimed.

[15] With respect to the alleged success’ made by the father at the motion, I agree with submissions of the mother that the obligation on the mother to advise the father of any change in Charly’s circumstances whether they be material or with respect to employment, were suggestions from the bench and were not claimed in the Notice of Motion or raised in submissions. Further, with respect to the obligation of the exchange or receipts for section 7 expenses, that already existed and was simply being reiterated by this Court.

[16] The evidence was that Charly had significant and permanent developmental delays. The father contested this fact. The mother was successful in obtaining full table child support of $1,071 per month; in maintaining of the obligation to pay the section 7 expenses; in obtaining an accelerated repayment obligation with respect to the arrears of support, and finally, an order that the father pay her $2,000 for the costs incurred in the application that he withdrew in 2015.

[17] In my view, this is not a case of divided success or even partial success. I find that the mother was successful in all issues before this Court.

Importance, Complexity or Difficulty

[18] The issue of the adults with developmental delays continuing to be entitled to child support is not a complex or difficult issue. This should have been a simple and straightforward matter. However, they became much more complicated by the disclosure requested by the father with respect to his daughter’s diagnosis of developmental delay as well as purported additional sources of income.

[19] The father argued that the order of Justice Warkentin allowed him to seek a variation of support once Charly attained 18 years of age. However, that is not what the father sought as he sought a termination of the child support. The father’s original position was a termination of support for Charly on her 18th birthday. The evidence is overwhelming that Charly’s developmental delay is significant, permanent and has existed since birth and that she is not in a position to support herself. It was only in April 2016 that the father acknowledged that Charly was entitled to support albeit an amount different from the full table support.

Reasonableness and Offers to Settle

[20] I find that the father has acted unreasonably in this proceeding. He sent correspondence to the Ministry of the Attorney General Family Responsibility Office, prior to his daughter’s 18th birthday advising them that the child support shall terminate upon her 18th birthday.

[21] The mother made two offers to settle. In the first offer to settle dated June 1, 2015, she offered to settle for child support for both children in the amount of $850 based on the father’s income of $73,000, and that the amount would be fixed and non-variable. Further, the father would pay $150 per month for his contribution to section 7 expenses, $200 per month towards the outstanding arrears, the parties would share postsecondary expenses equally and that he would pay $2,000 towards the Motion to Change that he discontinued in 2015. This offer would have been a better result for the father if he had accepted it, but he did not.

[22] On September 15, 2015, the mother resubmitted her offer to settle with one change where she sought that the father would pay $1,500 per month to the mother for her costs incurred in the proceeding. Again, the father failed to accept this offer. He must bear the consequences of that decision.

[23] The father made one offer to pay $900 per month of which $700 included table support for his youngest child, $200 towards the arrears, no support for Charly, no contribution to section 7 expenses, no disclosure of any documentation or no costs. In the circumstances, this offer was unreasonable.

Lawyer’s Rates

[24] I find that the hourly rate of Ms. Fleischman and Ms. Lalonde are reasonable.

Time Properly Spent

[25] Counsel for the father contests the hours spent by the counsel for the mother from the commencement of these proceedings to the submissions on the Bill of Costs. The total time spent by Ms. Fleischman, Ms. Lalonde, a student, and a law clerk total 126.5 hours. Using the hourly rate indicated in the Bill of Costs, the substantial indemnity cost sought for fees are $29,893.96.

[26] Counsel for the father argues that since he was retained in April 2016, he has spent 30.2 hours. The real question for the court is what is reasonable taking into consideration the issues before the court, the steps taken, the effectiveness of the time spent, and the eventual result.

[27] Unfortunately, the Bill of Costs provided by the applicant only provides me with a summary of the hours without a breakdown of the time spent and a description of the services. This leaves me with the same dilemma faced by Justice Ricchetti in Blank v. Micallef, 2009 CarswellOnt 6790 (Ont. S.C.J.). In that case, he reduced a costs claim because the lawyer's Bill of Costs provided insufficient detail and simply provided a general breakdown with a total of 49.2 hours. Ricchetti J. stated at paragraph 18:

It is impossible for me to determine whether the hours were reasonably necessary without a breakdown of the time spent on each task.

[28] In this case, I have a breakdown of the total hours spent by each lawyer as well as a student. However, I cannot determine what each lawyer did; when they did it, how long it took, and if it was required. The legal work related to drafting the responding materials, attending a first appearance, attending a case conference, preparing motion documents, attending two motions and correspondence to and from two different counsel for the father.

[29] While the respondent is entitled to costs, they must still be reasonable and proportional to the issues before the court.

Disposition

[30] In this case, the father took an unreasonable position as to Charly’s entitlement to support until very late in the litigation, he refused two reasonable offers to settle made in 2015 and he made one unreasonable offer to settle. A party is responsible for the position they take in litigation. The father must face the cost consequences of his actions in this litigation.

[31] I order the applicant to pay to the respondent the sum of $22,500.00 inclusive of fees, disbursements and HST within 90 days of this Endorsement.

Shelston J.

Released: July 6, 2016