CITATION: Denis v. Sanda, 2017 ONSC 5852
NEWMARKET COURT FILE NO.: FC-08-29254-01
DATE: 20171003
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Celine Marie Linda Denis, Applicant
and
Francisco Sanda, Respondent
BEFORE: The Honourable Mr. Justice D.A. Jarvis
COUNSEL: Celine Denis, Self-represented
S. Herschorn, Counsel for the Respondent
HEARD: August 23, 2017 (Motion)
Ruling on costs
jarvis j.
[1] On August 23, 2017 this court heard a motion by the husband. An Order was made that the wife provide disclosure, and a timetable was set for further steps in this case.
[2] Directions were also given with respect to costs of this motion. The husband has provided his submissions: no costs submissions have been received from the wife.
[3] The husband maintains that he was substantially successful with respect to most of the disclosure sought and requests costs ranging from $5,131.90 (Partial Indemnity) to $7,638.80 (Full Indemnity) inclusive of $166.68 disbursements. He made an Offer to Settle compliant with the Family Law Rules: the wife made no Offer of any kind.
Law
[4] The provisions of Family Law Rules 18(14) 2-5 and 24 (1), (5), (6), and (11) guide the court in the exercise of its discretion over costs and provide as follows,
18.(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s 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.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(11) In setting the amount of costs, the court shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[5] As observed by the Court of Appeal in Serra v. Serra, 2009 ONCA 395, modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
[6] The overall objective in determining costs is fixing an amount that the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 201, [2004] O.J. No. 2634, 2004 CarswellOnt 521 (Ont.C.A.). Since the primary objective of the Family Law Rules is to enable the court to deal with cases justly, it is incumbent on parties who, by choice or necessity, litigate to act reasonably and in a cost effective manner. This means that family law litigants are responsible, and accountable, for the positions they take in their litigation: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317, and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 (Ont. Ct.).
[7] It is noteworthy that the wife made no Offer.
[8] In Blanchard v. Walker 2012 CarswellOnt 16857, 2012 ONCJ 799 [2012] O.J. No. 6269, [2013] W.D.F.L. 932, 222 A.C.W.S. (3d) 452, 25 R.F.L. (7th) 487 (OCJ), Curtis J. commented on the importance of Offers to Settle:
Offers to settle are a significant part of the costs landscape in family law in Ontario. They are important to the possible resolution of cases. In addition, they are important to determining costs.
Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward to resolution (Rule 2). Rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 3(3)). Offers to settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute: Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 CarswellOnt 12972 (Ont. S.C.J.), para.7.
[9] Similarly in F. (H.) v. H. (M.) 2014 ONCJ 526 Sherr J. observed,
…it should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.
There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18 (14) sets out the costs consequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of a party’s behaviour in the case, clauses 24 (5) (b) and (c) of the rules direct the court to examine the reasonableness of any offer made, withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle. (bolding added)
[10] In Izyak v. Bilousov, 2011 CarswellOnt 14392, 2011 ONSC 7476, [2011] O.J. No. 5814, [2012] W.D.F.L. 1818, [2012] W.D.F.L. 1819, [2012] W.D.F.L. 1822, 210 A.C.W.S. 143, 7 R.F.L. (7th) 358 (Ont. S.C.J.) Pazaratz J. referred to the Serra objectives, as noted above, and observed,
- It is counter intuitive to suggest that these objectives are less applicable to litigants of modest (or no) means. To the contrary, those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings. As Glithero J. noted in Balaban v. Balaban, 2007 7990 (ON SC), 2007 CarswellOnt 1518 (Ont. S.C.J.), at paragraph 7: “…when a person’s financial position is such that they cannot really afford the cost of litigation, then there is all the more reason to attempt compromise of a meaningful nature.
[11] These observations apply in this case where a review of the wife's financial statement sworn July 4, 2016 discloses a party of modest means. No reasons have been given to this court for the wife's failure to comply with the Family Law Rules nor her failure to properly acquaint herself with the practice of this court in dealing, for example, with such matters as disclosure and the provision of pertinent financial information, especially where that information is relevant to her claims. As noted above, the wife is accountable for her litigation conduct. The husband's motion was, in all of the circumstances, not only appropriate but necessitated by the wife’s failure to take a more responsible approach to this litigation.
[12] The husband's Offer was dated August 14, 2017, a week and a half before the motion was argued. His solicitor's hourly rate ($400) and that of his clerk ($100) are reasonable and the time spent as detailed in the Outline of his solicitor's submissions is also reasonable. In all of the circumstances, the wife shall pay to the husband his motion costs in the amount of $6,000 inclusive of disbursements and HST of which $1,000 shall be paid by November 30, 2017 and the balance with interest at the disposition of these proceedings.
Justice D.A. Jarvis
Date: October 3, 2017