CITATION: Mark-Chang v. Chang, 2017 ONSC 5963
NEWMARKET COURT FILE NO.: FC-13-43776-00
DATE: 20171005
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Jean Mark-Chang, Applicant and Mark Wayne Chang, Respondent
BEFORE: The Honourable Mr. Justice D.A. Jarvis
COUNSEL: Applicant – Self-represented Rick Peticca, 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 respondent husband (“the husband”) for disclosure from the applicant wife (“the wife”). Despite the wife claiming that she had provided the disclosure requested there was no corroborating evidence before the court from her that she had complied with an earlier disclosure Order.
[2] An Order was made requiring the wife to provide identified disclosure and directions were given to her with respect to her obligations in the event that she believed she was unable to comply.
[3] Directions were given with respect to delivery of costs submissions.
[4] The husband has delivered costs submissions: the wife has not.
[5] Neither party delivered a Rule 18 - compliant Offer to Settle the husband's motion. The husband did provide the court with two comprehensive Offers to Settle the issues but no Offer dealing with his motion. The wife delivered a comprehensive Offer to Settle but that too did not deal with the merits of the husband's motion. The husband's argument that if the wife had accepted either of his Offers then his motion would have been moot, and avoided, while superficially appealing and equally applicable to the wife's Offer, ignore a party’s obligation to focus on the costs associated with each step in the proceeding, such as the motion in this case.
[6] The husband claims costs ranging from $8,402.75 to $11,208.57 inclusive of disbursements and HST.
Law
[7] 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The offer does not expire and is not withdrawn before the hearing starts.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.
[8] 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.
[9] 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.).
[10] 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.
[11] 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)
Analysis
[12] The disclosure ordered is important to the issues in this case. The wife has not acted reasonably. In reviewing the husband's Bill of Costs the rates claimed for solicitors and clerical fees are somewhat excessive. The disbursements claimed are reasonable.
[13] It is puzzling why neither party directed their mind to settling the husband's motion and making a Rule 18 Offer to settle it. In earlier proceedings, such as the motion heard by McGee J. on February 24, 2006, the endorsement made notes that both parties made Offers. Her Honour also made reference in that endorsement to the Serra principles as noted above dealing with costs.
[14] Disclosure motions are often time-consuming in terms of the preparation needed to identify the deficient disclosure and to present those deficiencies in an easily understood format. In reviewing the solicitor's Bill of Costs, those time entries made dealing with disclosure, and its analysis, are noted and the time spent not unreasonable although (as already noted) the recoverable hourly fees charged, especially by the clerk, are excessive. There are some entries such as locating the matrimonial home sale closing summary or transcribing solicitor’s handwritten notes which are not properly recoverable. Converting secretarial work to a recoverable clerical billing is not, in my view, a cost which should be recoverable or which a losing side would expect to pay.
[15] Viewed in proportion to the motion issues, time expended and Order made, it is reasonable that the wife pay to the husband his costs of the motion fixed in the amount of $6,000 inclusive of disbursements and HST. A higher award would likely have been made had there been an Offer to Settle the motion.
Justice D.A. Jarvis
Date: October 5, 2017