SUPERIOR COURT OF JUSTICE – ONTARIO

CITATION: Wood v. Evans, 2016 ONSC 7884 OTTAWA COURT FILE NO.: FC-15-689 DATE: 20161214

RE: Susan Patricia Wood, Applicant AND: Raymond Todd Evans, Respondent

BEFORE: Madam Justice Cheryl Robertson

COUNSEL: Stéphane A. MonPremier, for the Applicant Brian J. R. Hall, for the Respondent

HEARD: In chambers by Written submissions

COSTS ENDORSEMENT

Introduction

[1] The issue for determination is the liability and quantum of costs payable after an in writing motion for leave to appeal. I have received and reviewed both parties’ written costs submissions.

[2] The Respondent, Raymond Todd Evans, sought leave to appeal from four orders of Mr. Justice K. Phillips. The main issue of the matter related to whether an adult child’s economic childhood ended or if child support continued.

[3] A written decision was rendered and released the afternoon of Friday, July 8, 2016. The result was that requests for leave to appeal were dismissed. The parties expressed ongoing frustrations about disclosure and payment in the materials. The decision permitted the parties to request a conference at their option. I did not raise the issue of costs in the decision.

[4] The Applicant seeks costs fixed in the sum of $10,458 as detailed in the submissions, filed.

[5] The Respondent disputes the jurisdiction to order costs and alternatively, submits that there should be no costs. The Respondent’s written costs submissions were delivered November 16, 2016. The Respondent admits that the Applicant, Ms. Wood was successful.

[6] He submits he was unaware of the costs claim until a court staff contacted him to inquire if he was responding. He challenges the court’s authority to order costs on the basis of delay.

[7] He submits that Family Law Rule 24(10) requires costs be decided at each step and since the July 8th endorsement does not specifically refer to costs, then a cost order made would be in breach of that Rule and the court would be acting on its own appeal by making any order for costs now.

[8] Finally, the Respondent submits that if there is jurisdiction to deal with the issue, then there should be no costs “given the reference to Rules 24(4), 24(5) and 24(8). Specifically he states Ms. Wood is not coming to court with clean hands. He submits: “at no times has Ms. Wood ever complied with the order of June 5, 2015 requiring her to provide proof of the marks of the child, Dalton. To this day, Ms. Wood has not provided Dalton’s marks for his post-secondary education. Under such circumstances, Ms. Wood has acted unreasonably, has continued to act unreasonably, and this could amount to bad faith by continuing to be in contempt.”

[9] The court file includes a letter dated Monday, July 11, 2016, sent on behalf of Mr. MonPremier, the Applicant’s counsel, by his assistant. It was addressed to the court and copied to the Respondent’s counsel via fax. That correspondence was sent the next business day after receipt of the written reasons. The letter advised Mr. MonPremier was on holidays and would address costs upon his return to the office after July 19, 2016. The letter noted there had been a number of offers made in the context of the motions. No objection to this plan was sent by the Respondent. I did not fix a litigation schedule to address costs submissions in the decision. No one asked me to. Both counsel are senior.

[10] On July 25, 2016, Mr. MonPremier, counsel for the successful party properly forwarded costs submissions in writing through the trial co-ordinator. He has produced an affidavit of service by fax upon the Respondent for the submissions, supported by a copy of the fax confirmation matching the dates and matching the fax number on Mr. Hall’s letterhead.

[11] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, preserves the overarching discretion of the Court with respect to costs:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[12] The Family Law Rules were amended July 1, 2016. I have reviewed the submissions by both parties within the context of the old and amended Family Law Rules for costs. I find the result is the same.

[13] Rule 24 of the Family Law Rules, O. Reg. 114/99, deals with costs in family law matters. Rules 24(10) and (10.1) prescribe when the Court shall decide costs:

(10) Promptly after dealing with a step in the case, the court shall,

(a) make a decision on costs in relation to that step; or

(b) reserve the decision on costs for determination at a later stage in the case.

(10.1) In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs.

[14] Rule 24(10) was amended, and Rule 24(10.1) was added, by operation of s. 4(2) of the amending regulation, Family Law Rules, O. Reg. 235/16. Both provisions came into force on July 1, 2016.

[15] Prior to July 1, 2016, Rule 24(10) read as follows:

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[16] The meaning of “promptly” within the old s. 24(10) was considered by C. Perkins J. in S.(C.) v. S.(M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. S.C.), aff’d 2010 ONCA 196, 76 R.F.L. (6th) 14. Following trial, the father objected to the mother’s inclusion of costs of drafting and service of pleadings, costs of negotiations with respect to pleadings, costs of drafting various financial and net family property statements, and costs of preparing for and attending examinations on property and other economic issues. He argued that the claims had not been brought “promptly after each step” and that the Court lacked jurisdiction to entertain those claims some four years later.

[17] Perkins J. rejected this argument, holding that these costs were not linked to motions or conferences in the course of the case and were thus only properly recoverable when looking at costs of entire case, regardless of how long after the start of the case that may be. To him, the word “promptly” in s. 24(10) did not prohibit the ultimately successful party from recovering the cost of the original pleadings at this late date.

[18] Overall, rule 24(10) was designed to provide parties in family law matters, with the necessary assurance and certainty regarding the amount of costs that were payable as they proceeded through each step of the litigation. In often highly protracted and acrimonious proceedings, the rule protected parties from re-litigating costs before a judge who had not decided the issue and was thus not in the best position to determine the appropriateness of the work done: see Children’s Aid Society of London and Middlesex v. C.D.B., 2014 ONSC 1414, at para. 72.

[19] The word “promptly” did not refer to the speed at which the presiding judge released a decision on costs; rather, it signalled to the courts who the best and, thus, proper decision-maker would be.

[20] The recent amendments to rule 24(10) simply codify this general sentiment within the jurisprudence. As of July 1, 2016, courts now have two opportunities to determine the issue of costs: the decision is either made promptly after dealing with a step in the case as in these facts or it is reserved for determination at a later stage in the case. These amendments recognize the wide discretion of the presiding judge in determining and awarding costs.

[21] The Respondent has not challenged the court file contents of correspondence, the affidavit of service or fax confirmation. Although his cost submissions are dated in November, his submissions include an affidavit of service which attaches “a copy of the fax confirmation”. That document is a letter to Mr. MonPremier dated September14, 2016 referencing four pages of enclosed cost submissions by fax but only the confirmation of transmission report is appended. Perhaps it mistakenly dated September or perhaps it related to a different costs submissions since the submissions herein filed are a fax of eight pages. I make nothing of this.

[22] I find the Respondent’s lawyer’s office received the letter and submissions from Mr. MonPremier’s office. I cannot explain why the documents did not reach his attention.

[23] In the course of viva voce hearings, the usual procedure is to raise the issue of costs after the decision is rendered on the substantive issues. A written decision is no different. In a matter determined by written submissions, some delay should be expected in addressing costs. It is premature to argue costs before the decision is known. How else for example, could you make submissions comparing the result with Family Law Rule 18 offers as required under costs law?

[24] The Applicant’s submissions referred me to Fequet v Petelka Fequet, 2013 2200 (ONSC), para 2, where Justice Polowin held that where an endorsement is silent on the issue of costs, it is open for a judge to determine it. It is not up to the court to raise the issue of costs. I have also reviewed and considered the other cases provided by counsel including Islam v. Rahman, 2007 ONCA 622, 41 RFL (6th) 10.

[25] I find the written notice of the intention to provide submissions on costs the next business day after the decision, followed up with the filing of submissions in about 2 weeks is prompt. In these circumstances, I find the notice to address costs after Mr. MonPremier’s vacation, and his timely filing of submissions leave no doubt it is part of the step in the case as described in Rule 24(10) and (10.1).

[26] The Respondent cannot rely on his own mix-up and delay as a reason not to deal with this issue now. His lawyer’s office had notice of the costs request the business day following the decision. It is unfortunate that he was unaware of the claim. Mr. MonPremier is not opposed to the Respondent’s submissions being filed now. The Applicant has been waiting for months.

[27] Dealing with the merits of the costs claims, there is no challenge to the rates, time spent or experience of Mr. MonPremier. He was called to the bar in 2002 and his hourly rate is $280 plus HST. The disbursements were detailed at $286.32. The total HST is $1,203.22. I find his hourly rate is reasonable. The total time spent was significant. This was an expensive step for the parties. The Applicant made two offers to settle. They are attached to the written submissions and I find both equaled or exceeded the result. The Respondent resisted a reasonable offer made in accordance with the rules. The Respondent did not file any offers to settle with his submissions.

[28] As set out in Berta v. Berta, 2015 ONCA 918 and FLR 24, a successful party in a family law case is presumptively entitled to costs. The quantum of a cost award is discretionary. The Court must step back and examine the overall result with a view to determining what costs order is fair and reasonable and whether the costs order is in line with the principle of proportionality An award of costs is subject to the factors listed in Family Law Rule 24 and the reasonableness of the costs sought by the successful party. I considered the submissions with respect to the factors in Rules 18 and 24, as amended in July1, 2016 and under the old Rule.

[29] In determining costs, I considered the factors set out in Rule 24(11). I also considered Rule 24(5) which provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11)(b) above) and Rule 18(15), (burden of proving favorable order), Rule 18(10) offer remaining open despite rejection or counter-offer). I have also considered Rule 2: the primary objective of the rules is to enable the court to deal with cases justly. That includes dealing with cases in ways appropriate to its importance and complexity, saving expense and ensuring the procedure is fair to all parties.

[30] I find there is jurisdiction to address costs in these circumstances. I do not find bad faith by the Applicant. I have considered the submissions regarding reasonableness. I find the Applicant is entitled to costs. The quantum of costs needs to be proportional to the issues, amounts in question and the outcome. The actual docket of time charged to a successful litigant may not always be determinative. I find the amount claimed to be high in all the circumstances when exercising my discretion to fix costs that are fair and reasonable to be paid by the unsuccessful party.

[31] Taking into consideration the written submissions of the parties regarding costs, the Applicant’s offers to settle, the result, provisions of Rules 18 and 24 of the Family Law Rules as outlined above including a consideration pre and post amendment, the case law, the financial reality of the parties, the outcome and proportionality and in the exercise of my discretion, I fix the Applicant mother’s costs as fair and reasonable in the sum of $7,500 inclusive of fees, disbursements and HST all of which relate to child support issues and may be payable and enforced as an incident of support by the Family Responsibility Office.

Order

[32] Order to go that Mr. Evans shall pay costs to Ms. Wood fixed in the sum of $7,500 inclusive of fees, disbursements and HST, all of which relate to child support issues and may be payable and enforced as an incident of support by the Family Responsibility Office.

Justice Cheryl Robertson

Date: December 14, 2016

CITATION: Wood v. Evans, 2016 ONSC 7884 OTTAWA COURT FILE NO.: FC-15-689 DATE: 20161214

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Susan Patricia Wood Applicant – and – Raymond Todd Evans Respondent

BEFORE: Madam Justice Cheryl Robertson COUNSEL: Stéphane A. MonPremier, for the Applicant Brian J. R. Hall, for the Respondent

COSTS ENDORSEMENT

Madam Justice Cheryl Robertson

Released: December 14, 2016