Court File and Parties

COURT FILE NO.: FS-841-15 DATE: 2017/07/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL ROBERT STRANGWAY, Applicant AND: CHRISTINE LOUISE HOWARD, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Robert Bickle, for the Applicant Jessi L.N. Stanfield, for the Respondent

Costs Endorsement

[1] The parties have been unable to settle the issue of costs and have each delivered written costs submissions. The following is my disposition of the issue of costs.

(a) Position of the Respondent

[2] The respondent argues that she was the successful party on the motion and is therefore presumptively entitled to costs pursuant to rule 24(1) of the Family Law Rules. She submits that the court upheld her positions 1) that the marriage should be characterized as a long-term marriage, 2) that there ought to be terms in a court order obligating the parties to contribute to the child Danny’s post-secondary education, 3) that there ought not to be a termination date for spousal support but rather a review date should be set, and 4) rather than her being ordered to reimburse the applicant for any tax credits that he may have been entitled to for support payments in 2015 and 2016 which should have been characterized as spousal support, that the parties simply amend their tax returns for those years.

[3] The respondent seeks costs on a substantial indemnity basis, arguing that the applicant should have accepted her counterproposal to settle. She seeks the sum of $6,800.00, representing 80% of her actual costs (including fees, disbursements and HST) of $8,500.00.

(b) Position of the Applicant

[4] The applicant says that success on the motion was mixed and that, although each party acted reasonably by presenting an Offer to Settle, neither party obtained a result equal to or more favourable to his/her Offer to Settle. He submits that each party should bear her/his own costs. He points out that the respondent continued to be paid child support and to seek expenses for the child Danny after he turned eighteen in September, 2015, and no information was provided with respect to the actual costs of his post-secondary education or the financial resources available to him, even on the argument of the motion.

[5] The applicant points out that some of the time for lawyer’s attendances sought by the respondent relate to previous steps, such as conferences, for which costs were not reserved and therefore ought not to be included.

[6] The applicant submits that he was required to obtain an order to terminate child support and to obtain tax relief. He says that if the court would regard the respondent as the “successful” party, given the mixed success, the amount of costs to be awarded to her should be limited to $2,500.00.

Guiding Principles

[7] Pursuant to subrule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.), (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[8] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes an offer at least one day before the motion date, and obtains an order as favorable as, or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery of costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[9] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of r. 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[10] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[11] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, 2013 ONSC 4229, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[12] In my view, although the amount of spousal support which was awarded to the respondent was less than she sought, she was the successful party on the motion in respect of the predominant issues which divided the parties and which required judicial resolution, namely the duration of spousal support (termination date or date for review), whether there should be an order for child support for Danny while enrolled in post-secondary education, and whether the respondent should be ordered to reimburse the applicant in respect of the foregone tax credit or the parties should be required to refile their tax returns for the years in issue.

[13] However, I see no basis for an award of substantial indemnity costs in the respondent’s favour. The applicant acted reasonably, and indeed was forced to bring the motion to change when the respondent refused to agree to the termination of child support upon Danny attaining the age of eighteen. The applicant submitted an Offer to Settle and although he did not “beat” his Offer in terms of the amount of spousal support, it did represent a reasonable proposal and largely paralleled the order which was ultimately made by the court.

[14] I would reduce the amount of the respondent’s claim for costs relating to previous steps for which costs were not reserved, which the applicant estimated to be at least $730.00. I would also reduce the respondent’s claim for costs to reflect the fact that her initial position on child support necessitated the applicant bringing the motion.

Disposition

[15] It is ordered that the applicant pay to the respondent costs fixed in the sum of $4,250.00, inclusive, representing 50% of the respondent’s actual costs of the litigation. I find that this amount is fair and reasonable in all of the circumstances. This amount shall be paid within 30 days hereof.

D.A. Broad, J. Date: July 5, 2017