ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joshua John Hastings
Applicant
– and –
Rebecca Irene Hastings
Respondent
Nicole Matthews, for the Applicant
Raymond Sowley, for the Respondent
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
1In the final paragraph of my motion endorsement dated June 8, 2017 I stated:
I would urge counsel to reflect on whether it is appropriate to seek costs, having regard to the following Family Law Rules: 24(1); 24(4); 24(5); 24(6); 24(7); 24(9); and 24(11).
2Having now reviewed written costs submissions – in which each party is asking for costs against the other – I do not believe the parties have given adequate consideration to the serious deficiencies in their respective presentations at the day-long motion.
3As I mentioned in my endorsement, the timing and context of the motion was important.
[4]
Background
The parties initially separated on January 10, 2010, at which time they went to court in Milton. On July 9, 2010 they obtained an endorsement from the court that the divorce application was severed from the corollary relief, and a final order was to be issued in accordance with a memorandum of agreement. However, that endorsement was never turned into a court order because the parties reconciled a few months later, in October 2010. Seemingly they forgot about the Milton court file.
5They separated again on June 1, 2016. The very next day the Applicant commenced this fresh application in Hamilton, seeking to deal with basically the same issues. From the outset the parties aggressively pursued parenting issues in relation to their two children now 10 and 8, through a series of motions. The Office of the Children’s Lawyer (OCL) issued a section 112 report on November 23, 2016.
6However, during the period June 2016 to the hearing of the motion in June 2017 the parties did very little to address child or spousal support. Proper disclosure was neither sought nor provided by either party. Each party challenged the position being taken by the other. But they did very little to organize their files or test the other party’s case. Questioning was never held, even though it would clearly have been appropriate given the factual disputes. At a February 7, 2017 Settlement Conference the parties elected to adjourn the matter to the timelines. Effectively they put their case “on hold” without taking any meaningful action to resolve anything.
[7]
The Motion
The Respondent mother then brought a comprehensive motion which resulted in voluminous – but largely inadequate – materials being filed by both parties.
8At the outset of the long motion -- at my urging -- the parties agreed to stand down while they tried to draft a settlement document in relation to non-contentious issues. To their credit, they ended up filing final minutes of settlement resolving all parenting issues. The final agreement basically entails joint custody and equal time-sharing, which appears to have been the approximate arrangement since the parties separated.
9That left the Respondent’s claims for spousal and child support, including a claim for retroactivity going back one full year.
[10]
The Respondent's Approach
The Respondent’s approach to the support claims presented certain difficulties.
a. Even though she vigorously pursued parenting issues during many months following the June 2016 separation, she virtually ignored the support issues for the better part of a year. As stated, at the February 2017 Settlement Conference she agreed that the main application should be adjourned indefinitely. At the motion there were many disputed facts. Had the Respondent pursued support more diligently, she likely could have had her claims dealt with at a trial during the summer of 2017, rather than at a motion. And if she hadn’t inexplicably waited so long, retroactivity wouldn’t have become such a bitterly contested issue.
b. Each party complained about inadequate and delayed disclosure. But during the argument of the motion it became evident that neither party had taken sufficient steps to either produce or compel disclosure in a timely way.
c. On the morning the motion was to be argued, just before entering the courtroom, the Respondent’s counsel revealed to the Applicant’s counsel that the Respondent had just started a new job. Her financial situation would now be completely different. But her lawyer provided virtually no disclosure as to the Respondent’s new income.
d. The Respondent swore a financial statement on February 24, 2017 in which she erroneously listed her annual income as $42,976.00. That created confusion. Regrettably the Applicant’s counsel attempted to seize upon that figure even after it became obvious that the Respondent had mistakenly listed an annual income as a monthly amount.
e. Unfortunately, when the Respondent “corrected” her income, her revised calculations made no sense. She claimed that her real annual income was $2,440.74, even though it was obvious that from just one of her two part-time jobs she had been earning income at the rate of about $13,000.00 per year. Ultimately, trying to decipher very poor disclosure by the Respondent, I imputed income to the Respondent (for two successive phases) in amounts consistent with the Applicant’s position.
f. The Respondent sought to impute more than $127,000.00 income to the Applicant, but she failed to provide a proper evidentiary basis for her proposed number. She claimed deliberate underemployment by the Applicant, but she appeared to have done nothing during the year leading up to the motion to seek or assemble evidence on that topic. Even though the Applicant’s evidence on the topic wasn’t much better, for purposes of the motion I accepted the Applicant’s stated income of $85,495.00 (without prejudice to redetermination by the trial judge).
[11]
The Applicant's Approach
The Applicant’s approach to the motion was similarly problematic.
a. For an extended period of time during the litigation, the Applicant refused to file a proper financial statement, notwithstanding repeated requests by the Respondent’s counsel (and notwithstanding the Rules). On February 2, 2017 both parties were ordered to file financial statements by February 28, 2017. The Respondent met this deadline, but the Applicant didn’t file his financial statement until March 7, 2017.
b. He sought an adjournment of the support motion to a further Settlement Conference. But the parties already had a Settlement Conference in February 2017, and the file was basically on hold. Even though the Applicant was raising a threshold issue as to the Respondent’s entitlement to spousal support, there was no issue about entitlement to child support. The Applicant simply wasn’t paying anything – despite obvious need, ability to pay, and the inevitability of net support owing even in a shared custody arrangement. It was unreasonable for him to ask that this unfair arrangement continue during a further adjournment.
c. The Applicant was unsuccessful in claiming that a memorandum of agreement signed following the first separation in 2010, constituted a “forever waiver” of spousal support, notwithstanding almost six years of further cohabitation leading up to the final separation in 2016. (As an aside, I note that it is inappropriate for the Applicant’s counsel to comment in written submissions that a different judicial opinion was given during earlier case management.)
12The Applicant now claims costs of the motion in the sum of $3,926.75. The Respondent seeks $6,045.50.
[13]
The Law on Costs
Costs in family matters are addressed in Rules 18 and 24 of the Family Law Rules.
14The Ontario Court of Appeal in Serra v. Serra identified the three fundamental purposes of the costs rules:
(1) To indemnify successful litigants for the costs of litigation;
(2) To encourage settlement; and
(3) To discourage and sanction inappropriate behaviour by litigants.
15Rule 24(1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330
16In written submissions the Applicant’s counsel made reference to an Offer to Settle filed by the Applicant in relation to the custody and access issues.
a. That Offer was not attached to the submissions.
b. The custody and access issues were settled at the outset of the motion on a final basis. There was no specification in the minutes that costs in relation to the final order would be reserved to the motions judge. I do not believe costs in relation to the final parenting order are properly before me. In any event, I have not been provided with sufficient particulars to make any determination on this issue.
c. Neither party filed an offer in relation to the support issues which were the focus of the motion.
d. In family law cases, it is important to make offers on all issues – preferably severable offers. The failure to make an offer may constitute unreasonable behaviour, with an adverse impact on costs. Bowler v. Onesan, 2017 ONSC 3550 (SCJ).
17Similarly, the failure to make complete and timely disclosure is also an aggravating factor in determining costs. Gonzalez v. Garcia, 2015 ONCJ 198 (OCJ). As stated, neither party made adequate disclosure. Indeed, the Respondent’s revelation at the beginning of the motion that she had found new employment caused time to be wasted while efforts were made to assemble last-minute income information.
18Rule 24(6) directs the court to consider whether there was divided success, and if so, to apportion costs appropriately. “Divided success” does not necessarily mean “equal success”. And “some success” may not be enough to impact on costs. Jackson v. Mayerle, 2016 ONSC 1556 (SCJ). In this respect there was some divided success.
a. The Respondent was successful in obtaining temporary spousal and child support.
b. The Applicant’s position prevailed in relation to the determination of their respective incomes.
c. Overall, the Respondent was more successful, because she obtained significant support and the Applicant didn’t want to pay anything.
19Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their own costs and even ordered to pay all or part of the unsuccessful party’s costs. In this respect, the Respondent’s lack of disclosure and poorly organized materials undermine her costs claim. Similarly, the Respondent’s revelation on the morning of the motion that she had found new employment – but without particulars as to her new income – undermines her costs claim pursuant to Rule 24(7).
20Referring to Rule 24(11):
a. There is no doubt the financial issues were important to both parties – particularly the Respondent who required spousal and child support and wasn’t receiving anything.
b. I do not believe either party took a reasonable approach in allowing the main application to sit dormant and then suddenly asking the court to deal with complex financial and legal issues on an “urgent” basis, relying on completely inadequate materials.
c. I have no concerns about the time spent by the lawyers or their respective rates.
21The 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, 2004 14579 (ON CA), 2004 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe 2010 ONSC 1044, 2010 ONSC 1044 (SC (SCJ); Jackson v Mayerle (supra).
22The 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, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 36447 (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray, 2005 46626 (Ont. C.A.); Guertin v Guertin 2015 ONSC 5498 (SCJ).
23Rule 24(11)(f) directs the court to consider any other relevant matter. This includes reasonable expectations, proportionality, and the financial ability of each party to absorb their own legal fees and to contribute to the other party’s fees if costs are ordered.
[24]
Analysis and Conclusion
Overall, I find that there is no basis for any net entitlement to costs by the Applicant. The Respondent’s costs claim should be reduced not only by virtue of the divided success, but more importantly because of the very significant deficiencies in the presentation of the Respondent’s case.
25The bottom line however is that the Respondent had to go to court to obtain some support. And while both parties failed to make proper disclosure, this deficiency worked primarily to the advantage of the Applicant in that the longer the case lurched along unproductively, the longer he wasn’t paying a penny of support.
26Balancing all of these considerations, the Applicant shall pay to the Respondent costs fixed in the sum of $1,000.00 inclusive of HST and disbursements.
Pazaratz, J.
Released: August 10, 2017
CITATION: Hastings v. Hastings, 2017 ONSC 4802
COURT FILE NO.: 831/16
DATE: 2017-08-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joshua John Hastings
Applicant
– and –
Rebecca Irene Hastings
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: August 10, 2017