CITATION: Price v. Price 2017 ONSC 1239
COURT FILE NO.: FC-10-1191-1
DATE: February 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brenda Christine Price
Applicant (‘Mother’)
Scott Price
Respondent (“Father”)
Linda Hansen, counsel for the Applicant
John Summers, counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
shelston j.
[1] On January 18, 2017, I released my reasons for judgment where I varied the terms of the Divorce Order of Justice McNammara dated February 11, 2011.
[2] I granted the mother sole decision making responsibility, ordered the parents to administer medication prescribed by a health care professional, ordered that the children be enrolled in sporting activities, ordered the sharing of such expenses and reserved the issue of costs.
[3] The mother sought various claims for relief including sole custody of the two children, a variation of the father’s access from alternating weeks to every second weekend from Friday until Monday and one evening during the work week, an order that the father owes the mother $4084.28 in retroactive child support, an order that the father pay the mother $23,274.69 in section 7 expenses and an order that the father designate the mother as revocable beneficiary of life insurance as required by the divorce order.
[4] The father sought the dismissal of the mother’s motion arguing that there was no material change in circumstances and that he had no liability for retroactive child support or a retroactive contribution section 7 expenses.
[5] The mother seeks costs of $7,500 from the father on the basis that success on the issue of custody and access was divided as the mother was successful in obtaining sole decision-making power regarding the children and that the father was successful as the access was not varied.
[6] The father seeks cost of $15,000 from the mother on the basis that the father was successful on the most important issue being access and on the financial issues
The Family Law Rules
[7] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[8] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably, the Court shall examine:
(a) The parties’ 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.
[9] The factors to be considered in assessing costs are set out in Rule 24 (11) of the Family Law Rules which include:
(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 witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;
(e) Expenses properly paid or payable; and
(f) Any other relevant matter.
[10] Rule 24(10) mandates the Court to determine costs after each step. Where there is no order as to costs at a certain step, the Court is not to consider costs related to that step. Islam v Rahman 2007 ONCA 622.
[11] The 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. See Serra v. Serra, 2009 ONCA 395.
[12] The Court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but 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 (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[13] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).
Analysis
Successful Party
[14] The mother was successful on the issue of custody. I find that the majority of the trial time dealt with the issue of the parties’ inability to agree on the educational, recreational or medical decisions regarding the children.
[15] I disagree with the submissions by the father that this matter proceeded to trial because of access. The number of witnesses who dealt with the issue of decisions affecting the children outweighed all other witnesses.
[16] I agree that the father was successful on the issue of access as the access ordered by Justice McNamara continued. With respect to the financial issues, the father was successful in the mother’s claim for retroactive child support and retroactive section 7 expenses was rejected in large part save and except the father being required to contribute to soccer expenses in the amount of $1208.
[17] I find that the success was divided equally between the father and the mother.
The importance, complexity or difficulty of the issues
[18] The issues being decision-making affecting the children, the time share of the children in the financial issues were very important to the parties.
[19] The issues were not complex but were difficult.
The reasonableness or unreasonableness of each party’s behaviour
[20] I find that both parties acted reasonable in the advancement of their various positions during this trial.
The lawyer’s rates and disbursements
[21] I find that Ms. Hansen’s hourly rate of $200 and Mr. Summers hourly rate of $300 to be fair and reasonable based on their experience in family law.
[22] I find that the disbursements incurred by Ms. Hansen of $1248.68 to be reasonable.
The time properly spent on the case
[23] Ms. Hansen’s Bill of Costs indicates that from October 11, 2013 to February 5, 2017, she spent 277.8 hours of which 231.70 hours was incurred after assignment court on December 1, 2015.
[24] Mr. Summers Bill of Costs indicates that he spent 11.3 hours prior to the last minute settlement conference but provided no particulars. After the last minute settlement conference, Mr. Summers submits that he spent 102.9 hours up to and including the preparing of these cost submissions.
[25] With respect to Ms. Hansen’s Bill of Costs, I have not been provided with any endorsements at either the case conference or settlement conference reserving the issue of costs incurred at those events. Consequently, I have not considered those costs in my decision.
[26] This trial was heard over seven days and parties made written submissions. In reviewing the Bill of Cost from assignment court on December 1, 2015 until the completion of the trial including the cost submissions, I find the 231 hours to be an excessive amount of time spent when compared to Mr. Summers total time spent by Ms. Hansen.
Offers made
[27] The applicant made an offer on January 4, 2016, May 10, 2016 and May 15, 2016. The respondent made one offer to settle dated May 9, 2016.
[28] In the three offers to settle submitted by the mother, the main points were that she was to have sole custody of the children, the father’s access was varied to alternate weekends and either one or two evenings per week after dinner till 7:30 PM, there would be no retroactive child support, the father would pay child support to the mother, sharing of section 7 expenses and a reduction in the amount of life insurance from $150,000-$80,000.
[29] There were variations on the three offers but the general principles were that the mother would have final decision-making power regarding the children, the father would have access every second weekend, Thursday to Sunday and in the last offer to Monday at 5 PM and either one or two week nights after school for dinner until 7:30 PM.
[30] The father’s sole offer was that the access would continue as per the court order, the mother would be responsible for educational decisions and the father for medical decisions and all other aspects of the order to remain in effect.
[31] Neither party’s offer was better than my decision. The mother was granted sole decision-making power regarding the children, the access arrangements were not varied and the only amount that the father had to contribute to was $1208 regarding soccer expenses.
Disposition
[32] In the circumstances, I find that the success on the disputed issues was divided. I exercise my discretion to order that both parties shall pay their own costs.
Shelston J.
Released: February 24, 2017
CITATION: Price v. Price 2017 ONSC 1239
COURT FILE NO.: FC-10-1191-1
DATE: February 24, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brenda Christine Price
Applicant
– and –
Scott Price
Respondent
costs endorsement
Shelston J.
Released: February 24, 2017