Court File and Parties
COURT FILE NO.: FC-15-09 DATE: 2017/04/28 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robert Clermont, Applicant AND Lindsay Addie, Respondent
BEFORE: Madam Justice Engelking
COUNSEL: Altynay Teshebaeva, Counsel for the Applicant David Page, Counsel for the Respondent
HEARD: In Writing
Endorsement
[1] This endorsement pertains to costs in relation to the trial held January 17 to 20, 2017. The trial decision was released on February 28, 2017.
[2] The parties exchanged submissions with respect to costs between March 14, 2017 and March 17, 2017.
[3] The Applicant submits that costs should be granted to him on a full indemnity basis from the date of his offer to settle (April 28, 2016), as the outcome of the trial was more favorable to him than the offer, and on a partial indemnity basis prior to the offer, for a total costs order of $30,046.00 (inclusive of HST and disbursements).
[4] The Respondent submits that there are certain amounts owing to her in relation to retroactive child support and section 7 expenses, which are as follows: (a) $2,068.00 representing a top-up for child support payments from January 1, 2015 to April 30, 2016 specified in the Final Order of Justice Kershman dated April 25, 2016; (b) $1,134.00 representing a top-up for child support payments from March 1 to December 31, 2014 specified in my Reasons for Decision dated February 28, 2017; (c) $3,641.27 for section 7 expenses which the Applicant agreed to pay, specified in his correspondence to the Respondent dated May 12, 2016; and (d) $581.00 representing a top-up for child support payments from May 1 to August 1, 2016 accumulated due to delays taken by the Family Responsibility Office. The total is $7,424.27, and the Respondent submits that if there are any costs payable by her to the Applicant, this sum should be deducted from the amount owing. The Respondent further submits that any order of costs payable by the Respondent to the Applicant will cause her considerable hardship due to her existing student loan debt of $44,059.40, her lack of employment, and the fact that she has two young children in her care.
[5] The Applicant agrees that the debt owing to the Respondent of $7424.27 may be deducted from any costs ultimately owed to him by the Respondent. He submits, however, that the Respondent has not made out hardship in that she receives support from him for the care of Gunner, and she lives with Mr. Bishop, the father of Graydon, who provides for that child’s support. The Applicant additionally submits that Mr. Bishop earns upwards of $60,000.00, and the Respondent is also capable of earning an income.
[6] The Applicant submits further that it was the Respondent’s treatment of the joint custody order of Madam Justice Lafrance-Cardinal dated September 23, 2013, which necessitated the proceedings in the first place, and that he was the successful party on all substantial issues in the outcome.
[7] A thorough overview of the principles of the law of costs in a family law matter was recently done by Justice Pazaratz in the case of Chomos v Hamilton, 2016 ONSC 6232. In paragraphs 8 to 12, Pazaratz, J. stated as follows:
Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M.; Andrews v. Andrews; Wilson v Kovalev 2016 ONSC 163 (SCJ).
Rules 18 and 24, and most of the case law focus on two words: “Success” and “Reasonableness”. The latter entails two components: a. Reasonableness of behaviour by each party. b. Reasonableness of the amount of costs to be awarded.
In Serra v. Serra 2009 ONCA 395 the Ontario Court of Appeal confirmed that 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.
The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe 2010 ONSC 1044 (SCJ).
The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v Selznick 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis; Serra (supra); Murray v. Murray (2005); Guertin v Guertin 2015 ONSC 5498 (SCJ).
[8] Pazaratz, J. went further in paragraphs 13 to 16 in relation to offers to settle:
The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1); Sims-Howarth v. Bilcliffe.
To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made. Lawson v. Lawson.
Rule 18 deals with the formalities and consequences of offers. Rule 18(14) provides that a party who makes a written offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled, unless the Court orders otherwise, to costs to the date that the offer was served and full recovery costs from that date.
Offers to settle are to be encouraged, and severable offers (or separate offers on specific issues) are particularly helpful to the settlement process.
[9] Finally, Pazaratz, J. found at paragraph 19:
- To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v Rebiere 2015 ONSC 2129; Scipione v Scipione 2015 ONSC 5982. The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Sepiashvili v. Sepiashvili, 2001 CarswellOnt 3459, additional reasons to 2001 CarswellOnt 3316 (SCJ); Wilson v Kovalev (supra).
[10] In the case at bar, but for some minor adjustments to retroactive child support for the period of March to December 2014, the Applicant was substantially successful on all issues. He established a material change in circumstances in relation to the issue of custody, which he argues would not have been required at all had the Respondent treated the joint custody order of Lafrance-Cardinal, J. as just that, joint as opposed to sole custody.
[11] Additionally, the Applicant points to his success on the mobility issue, and states that the outcome was as well or better than his offer of April 28, 2016, in that he gained an additional weekend of access in five week months, daily telephone contact with Gunner, and the designation of him as the primary residence parent should the Respondent choose to move to British Columbia. While the Applicant argues that the Respondent’s behaviour regarding the joint custody order was unreasonable in the manner of Rule 24 of the Family Law Rules, the fact of the matter is the mobility issue required adjudication regardless.
[12] While I agree that the Applicant was the successful party, and that the outcome was as good or better for him than the offer he made, I am also cognizant of the fact that the end result of my decision is that the Respondent, along with Mr. Bishop, will have to make difficult decisions which may have an impact on their current and future financial situations.
[13] In keeping with the overall objective to fix an amount that if fair and reasonable for the unsuccessful party to pay, I order that the Respondent shall pay to the Applicant costs fixed in the amount of $20,000.00. The debt of $7,424.27 owed by the Applicant to the Respondent as set out in paragraph 4 above shall be deducted from that sum, resulting in the Respondent owing a payment to the Applicant of $12,575.73.
Madam Justice Engelking Date: 2017/04/28