SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-16-1466 DATE: 2018/03/13
RE: Robert Marous Joachim, Applicant -and- Rachelle Louise Denis, Respondent
BEFORE: Madam Justice D. Summers
COUNSEL: Self-Represented Applicant Alexander Lafreniere, for the Respondent
HEARD: October 31, 2017
COSTS ENDORSEMENT
Introduction
[1] This decision arises from the Respondent’s (Ms. Denis) motion for access to the two youngest of the parties’ five children. She also sought interim spousal support and an order compelling the Applicant’s (Mr. Joachim) compliance with the disclosure terms ordered at the Case Conference a year earlier.
[2] Before the motion began, the parties had agreed that there would be access subject to supervision but could not find common ground on a mutually acceptable supervisor. Each party proposed a different person. Ultimately, I found both individuals proposed to be acceptable and ordered that either could supervise access. With that resolved, the parties anticipated that they would be able to agree on an access schedule.
[3] The remaining issues were argued for the court to decide.
Position of the Parties
[4] Ms. Denis argues that she prevailed on the issues of access and disclosure. She says she is the more successful party and relies on the presumption of costs as set out in Rule 24(1) of the Family Law Rules, O. Reg. 114/99. The Bill of Costs prepared by Ms. Denis’ counsel reflects actual fees and disbursements of $2,400.69 based on his hourly rate of $160.00. The recovery amount requested is $1,400.00.
[5] Ms. Denis contends that Mr. Joachim’s behaviour was unreasonable and points to his failure to respond to correspondence and his refusal to negotiate. Although she did not make a Rule 18 Offer to Settle, she argues that she made significant efforts to resolve matters. She provides an email sent by her lawyer to Mr. Joachim dated July 26, 2017, setting out terms of settlement and states that she made follow-up efforts prior to the motion. In addition, she attaches a letter dated January 25, 2017 sent by her lawyer to Mr. Joachim’s then lawyer that addressed disclosure and spousal support. No reply was ever received.
[6] Mr. Joachim has two main points in reply. First, he claims that his failure to respond to communications after he released his lawyer was the result of fear and ignorance, not malice. He says that he is fearful of Ms. Denis. She served time for manslaughter and subsequently, in June, 2017, was convicted of criminal harassment against him. He said the thought of renewed contact with her was highly stressful for him. Mr. Joachim did not address his failure to respond to the January letter.
[7] Mr. Joachim’s second argument is this. He states that as the parent who has been and will continue to be solely responsible for the support of their children, he is financially unable to pay costs.
Analysis
[8] The terms of the access order made at the motion do not line up with the settlement terms proposed in Ms. Denis’ email of July 26, 2017. There, she proposed supervised access for the second and third youngest children of the marriage but not for the youngest child. Moreover, she did not indicate who should supervise access. The motion before the court concerned access for the two youngest children only, as well as the person to supervise. Access for the third youngest child was not in dispute.
[9] Ms. Denis sought spousal support and I declined to make that order. Although she has both a compensatory and needs based claim, Mr. Joachim has sole financial responsibility for the four children who reside with him. After considering the priority to be given to child support, Mr. Joachim’s income, Financial Statement, household budget and the Spousal Support Advisory Guidelines, I found that he was unable to pay spousal support. Ms. Denis’ settlement position was stated to be $2,600.00 per month in one proposal and $2,927.00 per month in the other. Ms. Denis nevertheless suggests my order represents a measure of success for her to the extent that entitlement was acknowledged. I do not agree and find that Mr. Joachim was the successful party on this issue.
[10] Mr. Joachim failed to comply with the disclosure order made in September, 2016. His explanation turns on the disagreement over the date of separation and thus, the valuation date. He argues that separation occurred on July 2, 2010 when Ms. Denis was charged with manslaughter, whereas she insists that separation occurred in July, 2016 when she left the matrimonial home for the last time. The disclosure order included terms requiring Mr. Joachim to produce evidence of real estate values. He states that he could not do so because he did not know which date was the right one for valuation purposes. I accept that his uncertainty was real, however, had Mr. Joachim adduced evidence of any efforts made to resolve this issue or make Ms. Denis’ counsel aware of his dilemma, his explanation around delay would be more convincing.
[11] In my view, success in this motion was divided, therefore, Rule 24(6) applies. It states that if success in a case is divided, the court may apportion costs as appropriate.
[12] Rule 24(11) provides that the court must consider the following factors in exercising its discretion to award costs:
(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;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[13] The issues on this motion were not complex but they were important to the best interests of the children. The rates charged and the time spent by Ms. Denis’ counsel were reasonable.
[14] Rule 24(5) requires the court, among other factors, to look at whether a party has made an offer to settle when determining the reasonableness or unreasonableness of that party’s behaviour. This court has frequently said that the failure to make an offer can be seen as unreasonable behaviour. See: Potter v. DaSilva, 2014 ONCJ 443; and Brown v. Pulley, 2015 ONCJ 238. Here, neither party made a formal Offer to Settle, however, Ms. Denis did make some efforts to resolve the issues in the motion. The same cannot be said for Mr. Joachim.
[15] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that “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”.
[16] The Court of Appeal for Ontario has also said that a litigant’s limited financial resources must be considered by the court when determining the quantum of costs to be paid. See: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont. C.A.). Meagre resources do not, however, insulate a party entirely from all liability. See: Snih v. Snih, 2007 20774 (ON SC) paras. 7-13.
[17] Finally, the Court of Appeal has said that costs, in the end, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”. See: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA).
[18] Having regard to all of the relevant factors and considerations outlined above including the fact that Mr. Joachim is solely responsible for the support of the children but has failed, in more than a year, to address outstanding disclosure obligations, I find it appropriate to order that he pay costs to Ms. Denis of $300.00 inclusive of HST within 45 days. This award is intended to message the court’s disapproval of non-compliance with disclosure orders.
Madam Justice D. Summers
Date: March 13, 2018
COURT FILE NO.: FC-16-1466 DATE: 2018/03/13
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Robert Marous Joachim, Applicant -and- Rachelle Louise Denis, Respondent
BEFORE: Madam Justice D. Summers
COUNSEL: Self-Represented Applicant Alexander Lafreniere, for the Respondent
COSTS ENDORSEMENT
D. SUMMERS, J.
Released: March 13, 2018