CITATION: Casas v. Lajoie, 2016 ONSC 7438
COURT FILE NO.: FC-16-685
DATE: 2016/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Isabel Casas
Applicant
AND
Michel Lajoie
Respondent
Wade Smith for the Applicant
Cecil J. Lyon for the Respondent
HEARD: In writing
Costs Endorsement
Justice A. Doyle
[1] The Court released an order granting the Applicant interim spousal support in the amount of $1,309 per month.
[2] The parties were invited to file costs’ submission regarding the August 18, 2016 motion, (at which time the Respondent was granted an adjournment for questioning), and the September 6, 2016 motion which resulted in a spousal support order.
[3] After having considered the parties’ written submissions, the Family Law Rules and the jurisprudence, the Applicant will pay costs to the Respondent the amount of $6,000 by June 1, 2017. My reasons are set out below.
Legal Principles
[4] The cost rules are designed for the fundamental purposes:
(1) to indemnify successful litigants for the cost of litigation;
(2) to promote the encourage promote and encourage settlement;
(3) to control behaviour by discouraging frivolous suits if the defences that lack merit.
See Fong v. Chan 1999 CanLII 2052 (ON CA), [1999] O.J. No. 4600 and Serra v. Serra [2009] ONCA 395.
[5] Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) creates a presumption of costs in favour of the successful party. Rule 18 of the FLRs deals with the cost consequences of failure to accept an offer and provides the Court with discretion to take into account any written offer to settle.
Applicant’s Position
[6] The Applicant submits that the Respondent delayed the hearing of the motion by filing his materials just prior to the return of the original date of the scheduled motion on August 18, 2016. The Court granted the Respondent’s request for an adjournment to allow questioning and set strict timelines.
[7] A majority of the motion held on September 6, 2016 was spent on entitlement. She was successful in obtaining spousal support and an obligation that the Respondent maintain life insurance as security for support.
[8] The Applicant is requesting costs on a partial indemnity basis.
[9] Her offer to settle requested spousal support in the amount of $1,975 per month.
Respondent’s position
[10] The Respondent submits that he is entitled to costs in the amount of $32,391.78, which includes costs of the motions heard August 16, 2016 and Sept 6, 2016 and preparation of the costs submission. His position is as follows:
(i) he was the successful party as his offer to settle dated August 24, 2016 offered monthly spousal support payments of $1,600 retroactive to September 1, 2016;
(ii) he is entitled to the costs of the August 18 2016 appearance, as he was successful in obtaining an adjournment to permit questioning; and,
(iii) he did not delay the proceedings.
Analysis
August 18, 2016 Motion
[10] The Respondent was successful in obtaining an adjournment. The Court found it was appropriate to question the Applicant on her materials and explore the details of her cohabitation with her new partner. As requested by the Applicant, the Court set out terms of the adjournment and timelines.
[11] The Respondent filed an offer to settle at least 7 days before the motion offering to adjourn the matter and set the earliest possible date for a return of the motion.
[12] Rule 24 (14) sets out the costs consequences of failure to accept the 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:
(1) If the offer relates to a motion, it is made at least one day before the motion date.
(2) The offer does not expire and is not withdrawn before the hearing starts.
(3) 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).
[13] He was successful in obtaining an adjournment and he should be reimbursed for the cost of attending. However, he served his materials just before the return of the motion although served with the materials on June 16, 2016.
[14] His costs before the offer to settle were $6,972.16 and after the offer to settle are $5,772.28 The Court finds that the amount of $12,067.32 claimed for the preparation and attendance on the adjournment is excessive. The matter took approximately 1 hour to argue in court.
[15] The Respondent should obtain some costs for the preparation for attendance on the adjournment request.
[16] The Court finds that a reasonable amount given the factors set out in Rule 24 and Rule 18 of the FLRs is $1,000.
September 6, 2016 Motion
[17] Much time was spent on the entitlement for support. The Respondent has previously recognized the need for support for the Applicant as he had agreed to pay on a without prejudice basis, $1,500 per month pursuant to an agreement through Collaborative Family Law.
[18] The Respondent’s position in denying the Applicant’s right to spousal support resulted in an extensive amount of preparation and court time in dealing with the issue of entitlement.
[19] The Respondent costs for the motion were $23,056.60. Prior to his offer the costs were $5,902.57 and $18,882.66 after the offer to settle.
[20] Therefore, despite the success in obtaining an order that was more favourable than his offer to settle dealing with the quantum of spousal support, the Court finds that the motion would have been substantially shortened had he admitted the entitlement issue.
[21] In addition, the offer to settle had other clauses that would have been unattractive to the Applicant to accept. In accepting this offer to settle, the Applicant would have to accept that there was no admission of her entitlement to spousal support, she would have to acknowledge that he had paid $15,000 in support in 2015 and she would be obligated to attend mediation or CFL. The offer to settle was not open to be partially accepted. The Court did not order these provisions.
[22] Nevertheless, the offer to settle did deal with a spousal support component and the Respondent did succeed in obtaining an order more favourable than his offer on quantum of spousal support.
[23] In considering the factors set out in Rule 24(11), I have considered the following:
(i) the importance, complexity and difficulty of the issues:
The Respondent submitted that the Applicant was not entitled to spousal support. The matter was not complex given the parties’ relationship, the Applicant’s medical issues, and the financial dealings during the parties’ relationship. The issue of the Applicant’s financial assistance was important to her.
(ii) the reasonableness or unreasonableness of each party’s behaviour in the case:
As stated above, the Respondent’s position regarding the denial of entitlement prolonged the time on the motion.
(iii) The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable.
The Respondent’s rate of $350 per hour with 27 years of family law experience is reasonable.
[24] My comments for the time spent for the motion are as follows:
The detailed bill of costs showed that counsel spent 48.65 hours. Questioning was necessary and attendance at the motion should be compensated. There are entries from staff that appear to be duplicated. Extensive time was spent on the preparation by 4 individuals on this file.
It was a one issue case and had entitlement been admitted, the time spent would have been shortened.
[25] There should be costs ordered on a partial indemnity basis due to the Respondent’s success in obtaining a spousal support order more favourable than his offer to settle.
[26] With respect to this motion returnable September 6, 2016, the Court orders costs to the Respondent in the amount of $5,000 payable by June 1, 2017.
Justice A. Doyle
Released: November 29, 2016
CITATION: Casas v. Lajoie, 2016 ONSC 7438
COURT FILE NO.: FC-16-685
DATE: 2016/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Isabel Casas
Applicant
AND
Michel Lajoie
Respondent
REASONS FOR JUDGMENT
Justice A. Doyle
Released: November 29, 2016