Court File and Parties

COURT FILE NO.: FS-840-15 DATE: 2017-05-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrea Cormier, Applicant AND: Daniel John Duesling, Respondent

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL: Alex Toolsie, Counsel for the Mother/Applicant Brent Balmer, Counsel for the Father/Respondent/Moving Party

COSTS ENDORSEMENT

[1] I have received, read and considered both counsel’s written submissions on this last issue.

[2] Rule 24 of the Family Law Rules provides, inter alia, that successful litigants are presumed to be entitled to “the costs of a motion”. In this matter the Respondent, Mr. Duesling, commenced his Motion to Change to terminate his child support obligation to his two now-adult daughters and rescind any/all accumulated arrears of child support that may remain owing. He made no offer to settle at any time.

[3] The responding party, Ms. Cormier, lives in Angus, Ontario. Mr. Duesling lives in Kitchener. The motion was commenced and proceeded in Kitchener. That reality required Ms. Cormier to travel to Kitchener on January 11, 2016, June 29, 2016, February 8, 2017 and February 13, 2017 that I know of.

[4] Costs “at each step” (Rule 24.10 of the Family Law Rules) were only addressed and awarded at $500 plus HST plus $150 disbursements on February 8, 2017. Otherwise, all of the presiding judges and other endorsements are silent regarding costs. The February 8, 2017 costs order has already been made and stands alone.

[5] Reluctantly, despite the obvious and clear success of Ms. Cormier resisting Mr. Duesling’s motion, I agree with Mr. Balmer’s argument that if Rule 24.10 of the Family Law Rules is to have any effect or relevance, costs must be sought, considered and awarded at each of the discrete stages of a motion/proceeding recognized by the Rules; such as a case conference, argued motion or settlement conference. See Husein v. Chatoor, 2005 ONCJ 487.

[6] In this proceeding no costs were sought or awarded at the case and settlement conferences on January 11, 2016 and June 29, 2016.

[7] Accordingly, the expenses attributable to those dates are disallowed.

[8] It is now trite law that:

(a) costs are to be decided in a summary matter;

(b) not serving any offers to settle can be reflected in costs orders – offers to settle contained in case conference or settlement conference briefs are not Rule 18 offers to settle, but Rule 18(16) allows the court discretion to “take into account” any written offer to settle; when it was made and the terms of that offer;

(c) “proportionality” to the issues argued rather than an unquestioned reliance on hours billed and documents created is the proper approach to deciding costs;

(d) costs should be viewed with flexibility and in “a balanced manner”, recognizing the court’s wide discretion;

(e) a costs order should represent a fair and reasonable amount that should be paid rather than any exact measure of the actual costs;

(f) costs should be assessed to result in a sensible and fair result consistent with what an unsuccessful party might reasonably have expected to pay; and

(g) in order to have some idea of what the “unsuccessful party” should/could have expected, his/her counsel are encouraged to disclose the account that that party received from his/her own counsel, if exception to the quantum of the successful party is objected to.

[9] In this matter, Mr. Balmer has elected not to disclose his own account to his client but objects to the amount Ms. Cormier seeks. That strategy is unhelpful.

[10] In her settlement conference brief of June 24, 2016, Ms. Cormier offered to settle the Respondent’s motion for far less than was ordered by the court on February 17, 2017. In hindsight, Mr. Duesling should have settled on those terms immediately. He chose not to do so. Therefore costs consequences follow.

[11] Rule 18(16) of the Family Law Rules allows me to take that reality “into account” (when deciding costs).

[12] As a result, after examining the factors set out in Rule 24(11) of the Family Law Rules and applying them to the circumstances, positions, offers and tactics of this motion and using the “flexible v.s. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung Blishen J. and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order to recognize the Applicant’s complete success including her written costs submissions is $4,000.00, inclusive of recoverable disbursements and HST, payable by the Respondent to the Applicant, forthwith.

[13] All of these costs were incurred with respect to an order for support. They are “legal fees or other expenses arising in relation to support or maintenance” and as such, shall be enforceable by the Director of F.R.O. (see s.1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31 (as amended) and Wildman v. Wildman (2006), 82 O.R. (3d) 401 (C.A.)) and I so order.

G.A. Campbell J. Date: May 18, 2017