CITATION: Hicks v. Sbardella, 2017 ONSC 4321
COURT FILE NO.: FC-08-980-2
DATE: 2017/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Hicks
Applicant
– and –
Suzy Sbardella
Respondent
Self-represented
Audra Bennett, for the Respondent
HEARD: In writing
COST Endorsement
[1] The issues adjudicated in this matter were the mother’s request to change legal custody of the child, to vary the residential arrangements and holidays, that there is no spousal support paid by the parents, determine the child support including section 7 expenses, delineate the communication between the parties, determine which parent will be responsible for the child’s legal documentation, determine travel for the child and ancillary orders.
[2] The father sought sole custody of the child or in the alternative, joint custody, proposed a method of communication between the parties, an order that the summer holidays would be shared equally, child support based on shared parenting and the set-off calculation pursuant to section 9 of the Federal Child Support Guidelines, an order that the child support paid by the mother to the father be held in trust and be put towards the child’s postsecondary educational expenses, a retroactive adjustment of section 7 expenses effective May 23, 2014, an order that the mother pay the father’s costs of $4,000 pertaining to a motion heard before Justice Doyle on August 13, 2015 and costs.
[3] The parties consented to certain relief that was included in a Partial Consent filed on the day of the motion. Both parties seek costs alleging that they were the successful party.
[4] There are three cost awards to be made concerning appearance before Justice Doyle, Master Champagne and myself. I have received the parties written submissions.
The Family Law Rules
[5] 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.
[6] 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.
[7] Rule 24 (11) states that a person setting the amount of costs shall consider:
(d) The importance, complexity or difficulty of the issues;
(e) The reasonableness or unreasonableness of each party’s behaviour in the case;
(f) The lawyer’s rates;
(g) 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;
(h) Expenses properly paid or payable; and
(i) Any other relevant matter.
[8] In Serra v. Serra, 2009 ONCA 395, the Court held that family law costs rules are designed to foster three important principles:
(j) To partially indemnify successful litigants for the cost of litigation;
(k) To encourage settlement; and
(l) To discourage and sanction inappropriate behaviour by litigants.
[9] Fixing costs is not a simple mechanical exercise.(See Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.).
[10] 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 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)
Costs before Justice Doyle
[11] Both Justice Doyle and Master Champagne reserved the costs of their involvement to the final hearing.
[12] The father brought a motion to have the child returned to him. On the same day, the mother brought her own motion seeking the appointment of the Office of the Children’s Lawyer, an updated Family Court clinic assessment, release of Ottawa Police Services and Children’s Aid Society records and other reliefs. Justice Doyle ordered that the child be returned to the father, the child commence counselling, the mother have free and liberal access, that the Office of the Children’s Lawyer be re-appointed, and on consent, ordered that the Children’s Aid Society would be permitted to meet the child at a neutral location and agreed to the release of the records of the Children’s Aid Society and the Ottawa Police Services.
[13] Both parties claim cost for this motion. However, upon a review of the order, the impetus of the motion was the father seeking the return of his child which was granted. Most of the other relief was dealing with future events. I find that the father is entitled to reasonable compensation for costs incurred in this motion. I reviewed the father’s bill of costs at a time when he had legal representation. I find it is fair and reasonable that the mother should pay the father costs of $2,500 related to this motion.
Cost before Master Champagne
[14] On May 30, 2016, Master Champagne conducted a case conference in this proceeding. At that time, both parties had counsel and the Office of the Children’s Lawyer had appointed a lawyer who attended. On consent, Master Champagne made an order that included that the parties would facilitate a dinner between the child and her father, the parties were to cooperate in setting up counselling for the child, the father would pay child support in the amount of $674 per month, the parties exchange section 7 expenses within 30 days, sealed the Court file and reserved costs of the motion judge.
[15] Both sides indicate they acted reasonably and should be awarded costs. I note that the order made on May 30, 2016 was made on consent. Given the fact that the case conference is a required step in a Motion to Change and that the parties consented to an order at the case conference, neither party was more successful and consequently, I order that both parties pay their own costs of the case conference.
Costs for the Motion
[16] The determination of which party is entitled to costs requires that I determine who was a successful party on the motion. In the various claims for relief submitted, the mother sought 47 different orders. At the beginning of the motion, I asked the parties if there were any issues that they were prepared to consent to. No such discussion had taken place and consequently I adjourned the motion to allow the parties to reduce the scope of the motion inquiry. The parties were able to sign a consent which was confirmed as part of a court order. Consequently, I will not award costs for the issues that the parties resolved.
[17] The contested issues can be divided into three categories. The first category related to the child’s custody and physical residence. The second dealt with child support and the third dealt with sharing of section 7 expenses.
[18] On the first category, the mother was granted sole custody of the child and access to the father was at the discretion of the child. The father’s request to have sole custody and/or shared parenting arrangement was not granted. The mother was successful on this category of issues.
[19] The second category dealt with child support sought by the mother from the father and the mother’s claim for reimbursement of support paid by the mother to the father. The father’s position was that he received the child support from the mother and put it into a Registered Education Savings Plan (RESP) for the child. Further, he placed the amount of child support that he should have paid the mother also into a RESP. The father requested that those funds remain in an RESP for the child’s education. I found that the father should paid child support to the mother commencing September 2015 until May 2016. I also found that the father should have suspended the mother’s obligation to pay support as of September 2015 until March 2016. I ordered the father to pay the mother the sum of $10,513. I find that the mother was successful on this second category of issues.
[20] The third category of issues dealt with section 7 expenses. Upon a review of the amounts claimed by both parties, many of the claims were not accepted as valid section 7 expenses. On March 6, 2017, the father made an offer in which he agreed to certain expenses but effectively offered to settle in making a payment of $184.95. On March 13, 2017, counsel for the mother sent an email to the father requesting a one-time payment of $4,833.89 to settle all section 7 expenses. While this offer is not in the form of offer pursuant to the Family Law Rules, it is something to take in consideration in determining costs. I note that the amount in the offer is more than my award. In comparing the two offers to the amended endorsement dated July 6, 2017, the mother was more successful on this issue then the father.
[21] In looking at the three categories, I find that the mother was the more successful party and is presumptively entitled to her costs.
[22] I have looked at the mother’s bill of costs, where she seeks legal fees of $15,965 plus HST of $2075.45 and disbursements and HST of an additional $865.25 for a total of $18,905.70. I find that the hourly rate sought is reasonable.
[23] In determining the quantum of costs, I am guided by the principle that the winning party is not entitled to be compensated for all legal fees incurred. Rather, the winning party should receive costs based on a reasonable amount that would be anticipated to be paid by the losing party.
[24] I reviewed the mother’s bill of costs which includes 68 hours of time incurred since September 8, 2016. While I appreciate counsel may spend as much time as they feel is necessary to properly represent their client, in assessing costs, I must determine what is a reasonable amount for the losing party to pay.
[25] I find a reasonable amount that the losing party would anticipate to pay on the motion of this nature to be the sum of $10,000 inclusive of disbursements plus HST for a total of $11,300.
[26] Having determined that the mother should pay the father’s cost of $2,500 for the motion before Justice Doyle and offsetting the sum of $11,300 owed by the father to the mother related to the main motion, I order the father to pay the mother the sum of $8,800 inclusive of HST for costs by August 18, 2017.
Shelston J.
Released: July 14, 2017
CITATION: Hicks v. Sbardella, 2017 ONSC 4321
COURT FILE NO.: FC-08-980-2
DATE: 2017/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas Hicks
Applicant
– and –
Suzy Sbardella
Respondent
cost ENDORSEMENT
Shelston J.
Released: July 14, 2017