CITATION: Silver v Silver, 2017 ONSC 6790
COURT FILE NO.: FC-11-927-1
DATE: 2017/11/16
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephen Silver
Applicant
– and –
Semi Silver
Respondent
Self-represented
Jennifer E. Jolly, counsel for the Respondent
HEARD: In Writing
AMENDED COSTS ENDORSEMENT
The text of the original reasons was corrected on November 16, 2017, at para 39 and the explanation of the correction is appended.
Shelston J.
[1] The parties were unable to resolve the issue of costs flowing from this litigation which included a case conference, a motion and finally twelve days of trial on the issue of custody, access, child support, spousal support and other ancillary relief. Both parties have provided me with their written costs submissions.
[2] The applicant submits that both parties should pay their own costs based on divided success while the respondent seeks the costs in the cause of $500 awarded by Justice Blishen on October 1, 2015; $1500 for costs related to the disclosure motion before Justice Doyle on May 4, 2016; $2500 for costs for the case conference before Justice Roger on July 11, 2016; $129,937.50 plus HST and disbursements of $4,104.36 for the trial and $2,000 for the costs submissions.
The Family Law Rules
[3] Under Rule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[4] Rule 24(5) states that 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.
[5] If a party has acted in bad faith, the Court shall decide costs on a full recovery basis and shall order the party to pay them immediately (Rule 24(8) of the Family Law Rules).
[6] The factors to be considered in assessing costs are set out in Rule 24(11) of the Family Law Rules:
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 witness, 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.
[7] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum, as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387, [2000] O.T.C. 979 (Ont. Sup. Ct.).
[8] Fixing costs is not a simple mechanical exercise.(See Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.).
[9] 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.)
Analysis
Costs before Justice Blishen
[10] On October 1, 2015, the parties consented to an order for disclosure, amendment of pleadings, questioning and that the parties were to obtain another case conference date before Justice Roger as he was case managing this matter. The court fixed the costs for the appearance at $500 payable in the cause. The respondent submits that she was the successful party and consequently she should receive those costs. The applicant submits that both parties should pay their own costs. The party who is the successful party is to receive those costs.
Costs before Justice Doyle
[11] On May 4, 2016, the parties attended before Justice Doyle and consented to further orders for disclosure. The court found that there was mixed success and the costs of the motion were reserved to the trial judge. The respondent seeks costs in the amount of $1500 because much of the disclosure that the applicant was required to provide had been previously ordered by Justice Blishen. The applicant submits both parties should pay their own costs.
[12] I find that based on mixed success determined by Justice Doyle, each party will pay their own costs.
Costs before Justice Roger
[13] The parties appeared before Justice Roger on July 11, 2016 for a case conference. Justice Roger had been case managing this matter. At that time, consent orders were issued on access and net family property adjustments. The request by the applicant for a further assessment was denied but the applicant was granted the right to renew his request at the trial. The applicant made no such request at the trial. The applicant submits that the main disputed issue at the case conference was a further assessment of the children which was not granted. The respondent seeks costs of $2500 for the preparation and attendance at this conference. The applicant submits that both parties pay their own costs.
[14] I find that there was mixed success in that the parties consented to orders, the request for a further assessment was not denied but rather referred to the trial judge and the court refused the amendment sought by the respondent. However the main issue being the assessment was not granted and not pursued at the trial. The respondent was the successful party.
Costs of the litigation including the trial
Successful party
[15] To be able to determine who was a successful party, I must make a determination which party was the successful party considering the various issues before me, the positions taken and the ultimate result. In this case, there were 13 issues before me not including the issue of costs. The issues and the result are as follows:
a) mother’s request to be granted sole custody of the children:
The mother was successful on this issue.
b) father’s request that he be granted equal time with the youngest child:
This relief was not granted and the mother was successful on this issue.
c) what access regime is in the best interests of the children?
The mother was successful on this issue.
d) should a parenting coordinator or reunification counselling be ordered?
This relief was not granted and the mother was successful on this issue.
e) what are the parties respective incomes?
The mother was partially successful on the imputation of the father’s income at $60,000 which was higher than the father’s position but lower than the amount she sought to impute. I accepted the mother’s evidence as to what her income was for 2015 and 2016. Overall the mother was successful on the issue.
f) what is the table amount of child support payable for all children?
Based on my findings with respect to the parties’ respective incomes and the decision regarding the residential arrangements for the children, the mother was the successful party on this issue.
g) should the court quantify future child support and section 7 expenses and deduct an equivalent lump sum from the equalization payment owing by the mother to the father?
As this relief was not granted, the father was successful.
h) should the court order the father to pay table child support and section 7 expenses retroactive to the date of separation being June 7, 2010?
Both parties agreed that there would be no variation of support up to December 31, 2014. The variation of support started as of January 1, 2015. The father was successful on this issue.
i) what are the section 7 expenses for the children?
While the amount of section 7 expenses was reduced, the mother was successful on this issue resulting in the father owing the mother $28,725.96.
j) should the court order the father to obtain and maintain life insurance in the amount of $1 million as security for child support?
This relief was not granted. The father was successful on this issue.
k) has it been a material change in circumstance to allow the court to either vary or terminate spousal support payable by the mother to the father?
As spousal support was not terminated but increased, the father being successful on this issue.
l) is the father a shareholder of 20160255 Ontario LTD and if he is what is the appropriately for him?
The father was the successful party as the mother conceded this issue at the trial.
m) is a deduction a retroactive reduction required to address the spousal support income tax reduction issue?
The father had already refiled his income tax return for the relevant year, so this issue was resolved.
[16] I find that most of the trial time related to the father’s income determination, the custody of the children and access of Ahron including the determination of his school, the determination and liability for of contribution to the section 7 expenses of the children, spousal support and child support.
[17] Other issues such as a parenting coordinator, reunification counselling, life insurance, determination of the father as a shareholder of the numbered company and the issue regarding the spousal support income tax were addressed in one day of the trial time.
[18] I find that the mother was the more successful party at trial. During the trial many issues were raised but not all issues were of equal importance. In this case, the issue of custody of the children, the residential arrangements for Ahron’s school, the father’s income determination, the issue of child support and section 7 expenses were very important. While the father was successful on maintaining’s entitlement and increasing his quantum of spousal support, the father was unsuccessful on major and most time-consuming issues dealt with in this trial.
The importance, complexity or difficulty of the issues
[19] The issues regarding the custody of the children and the access to them as well as Ahron’s school were very important to both parties. While the issues were not complex they were difficult especially in determining the father’s income for support purposes.
The reasonableness or unreasonableness of each party’s behaviour
[20] In determining whether a party acted reasonably or unreasonably, I am to examine a party’s behaviour in relation to the issues from the time they arose, determine if an offer to settle was made, determine the reasonableness of any offer and consider any offer that was withdrawn earlier that was not accepted.
[21] This trial started on September 26, 2016. The parties made the following all offers to settle:
a. on September 25, 2016 the applicant made an offer to settle;
b. on September 20, 2016, the respondent made an offer to settle; and
c. on December 1st, 2016, the respondent made a second offer to settle.
[22] The offers canvassed the outstanding issues before the court being:
a. Custody
i. The father offered that the mother have sole custody of all children except that he wished to maintain joint custody for Ahron. In the mother’s offer of September 20, 2016, she offered joint custody of the three girls with the mother having final decision making in the event of a disagreement. With respect to Ahron she proposed joint custody but that she would have the final decision making in the event of a disagreement with the exception of the area of Ahron’s education.
ii. In the mother’s offer dated December 1, 2016, she sought sole custody of the three girls and that she would not be obligated to consult with the father regarding any decisions unless the girls wished to do so and that she made her position remained the same regarding Ahron as set out in her offer of September 20, 2016.
iii. In my decision, I granted the mother sole custody of all four children. I ordered the mother to consult and advise the father of any major decision except the academic education of the three girls. I granted the mother the right to make all decisions regarding the children.
b. Access
i. The father offered requested access to the children from Friday morning until Friday morning the following week. The mother’s offers to settle with respect to access to the girls was that access will be in accordance with their wishes. With respect to Ahron, the mother was prepared to agree that the father have access in accordance with Justice McLean’s order of June 3, 2013 with slight modifications. In my decision, the girls are to have access in accordance with their wishes and Ahron will reside primarily with his mother and have specified access with the father, but less than the amount requested by the father in his offer to settle.
c. Ahron’s school
i. In the mother’s offer to settle dated September 20, 2016 and her second offer dated December 1, 2016, provided the father paid half of the tuition and fees, she proposed that Ahron would attend Heritage Academy for grades seven and eight and for high school, that decision would be made by the psycho-educational assessor who worked with the child in the past. In the father’s offer to settle dated September 25, 2016, he proposed that the issue of Ahron’s school for the September 2017 school year would be arbitrated by a psycho-educational assessor which arbitration decision would be binding on both parties with no right of appeal or review.
ii. In my reasons for judgment, I ordered that the child attend a public school chosen by the mother.
d. Multidirectional order
i. The father’s offer to settle included a very detailed multidirectional order dealing with various issues regarding custody and access. Neither of the mother’s offer to settle contained such multidirectional terms.
e. Table Child support and Section 7 expenses
i. On the issue of child support, in the mother’s offer dated September 20, 2016, she was prepared to release the father from any obligation to pay table child support as of January 30, 2015 and that all arrears owing after January 30, 2015 would be extinguished. Further, he would not contribute to any of the section 7 expenses but he would have to contribute 50% of each child’s tuition and living expenses for college or university less a contribution made by each child. Any arrears of child support owing up to January 30, 2015 was to be paid from the father’s share of the proceeds in a specified trust account.
ii. In the mother’s offer to settle dated December 1, 2016, the mother amended her offer slightly by specifying the amount of $33,808.96 being the amount owing for arrears of table child support as of January 30, 2015 and specifying that the father owed $8393.12 for his share of the contribution to Max’s university expense.
iii. In the father’s offer to settle, he was prepared to pay child support based on various income levels starting back on June 3, 2013.
iv. In my reasons, I ordered the father to pay table child support, effective January 1, 2015 and to contribute to section 7 expenses.
f. Spousal support
i. In the mother’s offer dated September 20, 2016, she offered to terminate spousal support effective October 1, 2016. In her offer dated December 1, 2016, she offered that spousal support terminate immediately in exchange of which there would be no table child support. In the father’s offer to settle, he was prepared to agree that spousal support would be $1023 per month as of June 3, 2013 with no termination date.
ii. In my reasons, I increased the father’s entitlement to spousal support commencing January 1, 2015.
g. Other issues
i. While the mother’s offers to settle did not contain a multi-directional order, in her final submissions, she provided her version of a multidirectional order. The father’s offer contained a multidirectional order. In my reasons, I accepted substantially the mother’s version of the multi-directional order.
ii. In both of the mother’s offers to settle, she had requested that the interest that she owes on the equalization payment cease accumulating. This relief is not granted.
[23] When I compare the various offers to the relief granted, it is apparent to me that the mother’s offer regarding the custody, access and educational issue for Ahron were reasonable offers to settle which the father should have accepted. Further, the mother was prepared to release the father from his significant liability to pay table child support and section 7 expenses in exchange of which the father would pay 50% of each child’s tuition and living expenses while the child attended university and he would waive any entitlement to spousal support.
[24] The father did not accept the offer. The result is that the custody, access, educational, table child support and section 7 issues were decided in favour of the mother. These matters took up most of the trial time. Further, in both offers submitted by the mother, they were divided into Part One which dealt with custody and access to the children and Part Two which dealt with support issues. The father could have accepted Part One on custody and access which would have provided him with more advantageous relief than the relief granted in my decision.
[25] None of the offers to settle engage the costs consequence of rule 24(18) of the Family law Rules. However, I make take into consideration the offers to settle in my overall consideration of liability for costs and their respective quantum.
[26] The mother submits the offers to settle on the issues of custody and access and school were better results for the father than the actual trial decision and consequently she seeks substantial indemnity rate of $315 an hour x 412.50 hours = $129,937.50
The lawyer’s rates and disbursements
[27] I find that Ms. Jolly’s hourly rate of $350 is reasonable based on her experience in a practice restricted to family law.
[28] I reviewed the disbursements totalling $4,104.36 and I find that they are reasonable and necessary expenses.
[29] I have also considered the fact that the father had retained Mr. Richard Bowles to provide him with legal assistance during the trial in the amount of $13,707 plus disbursements and HST resulting in a total of $15,602.52. Mr. Bowles was charging $395 an hour. I find this information relevant as it provides me with information that the father was aware of what the cost was of having senior counsel assist him for a trial.
The time properly spent on the case
[30] Ms. Jolly’s bill of costs indicates that she has spent 412.50 hours from March 4, 2016 up to and including October 11, 2017. Her bill of cost provides information regarding the date of the service, the description of the service, the time spent and the responsible lawyer. This matter was to be tried during the May 2016 trial sittings but was not reached and was adjourned to the September 2016 trial sittings. In examining the detailed bill of cost provided by Ms. Jolly, trial preparation commences on May 2, 2016 and continues until May 19, 2016 for a total of approximately 93 hours not including attendance at a trial management conference on May 11, 2016.
[31] I have reviewed her bill of costs and there are dockets for the motion before Justice Doyle in May 2016 and for in the case conference before Justice Roger in July 2016 which I previously addressed. Trial preparation resumes in earnest, according to the dockets, on September 19, 2016 and resumes in December 2016 including drafting the written submissions.
[32] While the mother’s counsel has the right to prepare for the trial in May 2016, there is evidently a duplication of efforts between preparing and May and September 2016.
[33] In assessing the time properly spent on the case, I have the discretion to determine what is reasonable in the circumstances. I do not find that 412 hours is a reasonable amount of time be reimbursed by the losing party. I find that there is duplication of the time spent in preparing for the May trial and the actual commencement of the trial September 2016.
Any other relevant matter
[34] This trial was conducted over a 12 day period. The father, who was self-represented, was not properly prepared for the trial, was late on numerous occasions and required continuing refocusing by me to present his evidence. The father filed 100 exhibits and attempted on three occasions to refile exhibits he had previously filed as evidence. The father testified in chief for five consecutive days. If he was better prepared his evidence should not have lasted more than three days considering the issues that were involved.
[35] Despite the issue of custody of the three minor female children being an issue before trial, it was only during his examination in chief on day two of the trial that the father advised for the first time that he was prepared to concede sole custody of the girls to the mother. I reject the submission from the father that, in his opening statement, he indicated he was prepared to concede custody to the mother. Upon a review of the father’s opening statement, which he provided in writing, he stated that since the mother was seeking sole custody, the court must analyse each parent’s mental, physical and emotional health and perform an evaluation of the parental judgment capacity of each parent, evaluating past behaviour which reflects directly on an individual’s ability to act as a parent and lastly to perform an evaluation of sole custody seeking parent’s ability to consider the other parent’s position and input on child related decisions. Specifically the respondent stated in his written opening statement “If the respondent is given the carte blanche of sole custody the children’s best interests will not be served and she shall finish the job she has started with total alienation of the last and youngest child of the family”. At no time during the opening statement did the father indicate that he was prepared to agree that the mother have sole custody of the children.
[36] While all parties are to be provided with procedural fairness, a self-represented party, like any party in the litigation, is responsible for not being properly prepared and unduly extending the required time for trial. Throughout this trial, I attempted to provide the father with procedural fairness while maintaining my required neutrality to the parties.
[37] Further, during the trial I requested an updated Voice of the Child report. The author of the first report, Ms. Suzanne Galarneau prepared a second report on the current wishes of two of the four children minor children. The father refused to permit simply the filing of the written report and insisted that Ms. Galarneau testify at the trial. She did so and was cross-examined by the father. I find that no information was elicited from Ms. Galarneau that was not contained in her written report. This delay extended the length of the trial and provided no further information to me.
[38] In assessing those costs, I am to be fair, proportional and reasonable as to what the losing party would expect to pay in costs. I have also considered the offers to settle submitted by the mother regarding custody, access and the educational issues which were severable parts of both offers to settle. The mother’s offers on these issues was more than what was ordered in my reasons for judgment. The father should not have proceeded to trial on the issues regarding custody, access and education. If the father had not proceeded on this issues, the trial would have been dramatically shorter in time.
Disposition
[39] I find it fair and reasonable that the father pay to the mother the sum of $60,000 for her costs.
[40] I order that this cost award be secured against the father’s equalization payment and that the rate of interest for this cost award be set at 3%. With respect to the interest rate of 3%, I make such an order so that the interest rate accumulating on the costs award is equivalent to the interest rate accruing on the equalization payment.
Released: November 16, 2017
Shelston J.
APPENDIX
The following modification was made to paragraph [39]:
I find it fair and reasonable that the father pay to the mother the sum of $60,000 for her costs.
CITATION: Silver v Silver, 2017 ONSC 6790
COURT FILE NO.: FC-11-927-1
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephen Silver
Applicant
– and –
Semi Silver
Respondent
AMENDED costs endorsement
Shelston J.
Released: November 16, 2017