CITATION: Astley v. Labelle, 2017 ONSC 1378
COURT FILE NO.: 03-FL-2606-2
DATE: 2017/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER ASTLEY
Applicant
– and –
PATRICK PETER JOSEPH LABELLE
Respondent
Blake R. Lyngseth, for the Applicant
Michael Rappaport, for the Respondent
HEARD: By Written Submissions
DECISION REGARDING COSTS
L. SHEARD, J.
Overview
[1] This cost award is in respect of the motion to change brought by the Respondent father (the “Father”) who sought to change the final order of Justice Backhouse dated February 14, 2014. He sought to terminate child support for his daughters, Jacy Labelle (“Jacy”) and Emma Labelle (“Emma”).
Positions of Parties
[2] The Applicant mother (the “Mother”) opposed the Motion to Change. The motion was argued on October 27, 2016 and my Reasons for Judgment were released on December 2, 2016. As per its terms, the parties were invited to submit written submissions on costs, in the event they could not agree on costs. I received those written submissions.
[3] The Father seeks costs. According to his Bill of Costs, costs on a full indemnity basis would total $9,628.79 based on 43.7 hours at the hourly rate of $195.00 and disbursements (with HST) of $133.04.
[4] The Mother’s responding costs submissions do not comment on the amount being claimed for costs: there is no complaint raised respecting the hourly rate charged, the hours spent, or the disbursements incurred. The Bill of Costs shows a total of 43.7 hours were spent. Those hours include not only the motion to change itself, for which the parties were required to submit factums, but also includes time spent to prepare for and attend a case conference in July 2016 and the Father’s motion, heard on September 8, 2016.
[5] In her costs submissions the Mother concedes that the Father was successful with respect to present child support obligations but argues that the Father has not enjoyed full success on his motion in that his request for a final termination of child support was not granted. The Mother also argues that the Father’s request for costs ought to be tempered by his failure to make an offer to settle and by what the Mother perceives to be allegations against her of unreasonable behaviour. She argues that the Father’s “inflammatory allegations of bad faith and misconduct were all unproven and served only to lengthen the proceedings unnecessarily, forestalling a reasoned dialogue between the parties that might have resulted in a resolution without the need for judicial intervention…”
[6] The Mother also argues that the Court should take into account the financial situation of the parties and ought not to “ignore the best interests of the child and cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” This argument can only be directed to the interests of the youngest child, Jacob Labelle (aged 16) given my determination that neither Jacy nor Emma qualify as children for the purposes of support. Indeed, that was the very basis of the Father’s motion to change.
[7] In his costs submissions, the Father attaches the endorsement of (then) Master MacLeod made July 15, 2016 which included orders against the Mother as well as other relief applicable to the Mother and Father jointly, and reserving costs to the motions judge; and the endorsement of Justice Roger, who also made orders against the Mother, and awarded costs in the cause. These orders somewhat undermine the Mother’s complaints that the Father was unfair or misleading in alleging failure to disclose information.
Factors
[8] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules and include that the successful party is presumed to be entitled to costs; the reasonableness of the behaviour of each party; and any offer to settle; any acts of bad faith by any party; the importance, complexity, or difficulty of the matter; the scale of costs; hourly rates and time spent; and the reasonable expectations of the losing party.
Success
[9] In this case the Father was largely successful: Child support was terminated for Jacy and Emma and the Mother must repay the overpayment of support. By her own calculation, the Mother has determined that the Father overpaid support by $19,032.00 (See, letter from counsel for the Mother dated January 4, 2017 addressed to this Court, copied to counsel for the Father).
[10] As per the Order of Justice Roger, the costs of the September 2016 motion are to be awarded to the Father. The endorsement of (then) Master MacLeod does not direct to whom the costs of the case conference should be awarded. Based on his order, I conclude that the father had at least partial success on the case conference and that he is entitled to some costs of the conference.
Complexity and Importance
[11] In his submissions, the Father argues that the issues of whether one or both of Jacy and Emma suffered from learning disabilities and whether Jacy also suffered from addiction problems complicated the issue of whether they were capable of living independently and earning a living. I agree. The materials on the motion included lengthy reports from Dr. Ben David-Streiner for each daughter. In addition, both Jacy’s living arrangements and her schooling history necessitated greater than average investigation and lengthier motion materials.
Unreasonable Behaviour or Bad Faith
[12] Notwithstanding the assertions made by the Mother, I cannot conclude that the Father’s conduct achieves the high threshold required for a finding of bad faith or that the Father acted unreasonably. Specifically, the Mother asserts that the Father had an obligation to serve an offer to settle and ought to be penalized for not having done so. The Mother served an offer to settle in August 2015 which was accepted by the Father on September 30, 2015. The Mother’s costs submissions explain that, although the offer was accepted, an order could not be taken out because of a disagreement regarding the wording of the proposed order and due to the Father’s “intransigent position that Emma is not disabled”. That information is incomplete for this Court to draw the conclusion that the Father acted unreasonably or in bad faith.
[13] The Court does note that when the parties or their counsel fail to exercise courtesy and politeness, it does not advance either’s case. Such behaviour displayed in oral or written submissions is strongly discouraged by the Court.
Offers to Settle
[14] As stated above, the Court has not been provided with sufficient information to fully understand why the matter was not settled on and after September 30, 2015. The Mother did attach her offer to settle dated October 24, 2016, served the day before the Motion to Change was heard. Clearly that offer was not accepted and the Father achieved a result that was better than set out in the Mother’s Offer.
Scale of Costs, Hourly rates, Time Spent and Proportionality
[15] In the absence of any criticism by the Mother of the time spent and the hourly rates charged, I conclude that the Mother does not take issue with either. Given the court appearances and the somewhat voluminous materials, the time spent appears reasonable. In addition, the hourly rate of $195.00 also seems reasonable for counsel who had been practising for eight years.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[16] The Mother has not provided any information about her own legal costs for these proceedings. That information can be helpful to a court when assessing the amount that a losing party would have reasonably expected to pay the successful party.
Disposition
[17] Having considered the above factors and in view of the fact that: the Father was largely successful on his Motion to Change; the endorsement of Justice Roger that costs of the Father’s motion were to be in the cause; and the mixed outcome of the Case Conference before (then) Master MacLeod, I determine that the Mother shall pay costs to the Father in the amount of $7,500.00 plus HST, plus disbursements inclusive of H.S.T., totalling $133.04, for a total costs award of $8,608.04.
L. Sheard J.
Released: March 14, 2017
CITATION: Astley v. Labelle, 2017 ONSC 1378
COURT FILE NO.: 03-FL-2606-2
DATE: 2017/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER ASTLEY
Applicant
– and –
PATRICK PETER JOSEPH LABELLE
Respondent
DECISION REGARDING COSTS
Sheard J.
Released: March 14, 2017