Sarmiento v. Ortiz, 2018 ONSC 1669

OTTAWA COURT FILE NO.: FC-03-1229-4

DATE: 2018/03/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmenciata Sarmiento

Applicant

– and –

Gerardo Ortiz

Respondent

Fan MacKenzie, for the Applicant

John Guest, for the Respondent

HEARD: By Written Submissions

Endorsement on Costs

Engelking J

1This is the costs endorsement on Ms. Sarmiento’s Motion to Change the Order of Justice Linhares de Sousa of April 12, 2005, which was heard on November 21, 2017. Written submissions on the issue of costs were invited and received from both parties, along with copies of their bill of costs and offers to settle.

Positions of the Parties

2Ms. Sarmiento takes the position that she is the successful party on the motion and she is presumptively entitled to an order of costs. She submits, moreover, that she is entitled to costs on a full recovery basis from the date of her Offer to Settle of April 25, 2017, as the outcome of the motion was more favourable than the offer. Ms. Sarmiento on that date offered that child support and section 7 arrears to December 31, 2016 be fixed at $13,000. On November 5, 2017, she made a further offer that they, along with costs, be fixed at $8000. Arrears were fixed at $21,378.76 by my order of December 20, 2017. My order was thus more favorable to Ms. Sarmiento than her respective offers to settle.

3Ms. Sarmiento’s counsel’s bill of costs reveals a partial recovery of $963.30 to April 25, 2017 and a further full recovery from April 25, 2017 to the motion of $16,334.59, for a total of $17,297.89. She seeks an order entitling her to $16,000.00 inclusive of HST and disbursements.

4Mr. Ortiz takes the position that any costs award in Ms. Sarmiento’s favour should be reduced based on: 1) he was partially successful on his cross-motion seeking to strike portions of Ms. Sarmiento’s affidavits; 2) unnecessary costs were expended on his effort to obtain a new date or the ability of his client to participate by telephone in a case conference; and, 3) his financial circumstances should be taken into consideration.

Applicable Law on Costs

5Rule 24(11) of the Family Law Rules outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.

6In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time thy arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.

7Rule 18(14) dictates that a party is entitled to cost from the date of an offer on a full recovery basis if the criteria contained therein are met.

8The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para 26.

Analysis

9The issue of retroactive child support was very important to the parties, but it was not particularly complex. Both counsels’ respective hourly rates are reasonable given their level of experience.

10Mr. Ortiz brought a cross-motion seeking to strike some of the paragraphs and/or exhibits of Ms. Sarmiento’s affidavits, and while he was partially successful in so doing, none of the evidence struck was particularly pertinent to the issue of retroactive support. The motion took a disproportionate amount of time for any benefit that was achieved from it. Mr. Ortiz’ emphasis on this issue required Ms. Sarmiento to focus portions of her factum and argument to it in what was, in my view, a fairly unproductive exercise at the end of the day. Mr. Ortiz’s focus on this issue was unreasonable.

11Ms. Sarmiento’s offers to settle were reasonable, and Mr. Ortiz had the opportunity to end the litigation at a much sooner junction than the motion. He submits that the 60 day payment period in the April 25, 2018 offer was not reasonable, however, he made no counter-offer in respect of the timing or method of payment. Ms. Sarmiento’s December offer was very reasonable in the circumstances.

12I agree that there can be a slight reduction in what is being requested based on excessive time having been spent (by both parties) on the issue of the case conference.

13Mr. Ortiz states that his financial situation is such that he is unable to pay a substantial costs award along with the outstanding child support arrears. Mr. Ortiz relies on the Ontario Court of Appeal in C.A.M. v. D.M., 2003 18880 in support of the proposition that “the financial position of the parties can be taken into account in setting the amount of the costs award” (C.A.M., paragraph 42). However, as Justice Doyle has pointed out in Wehbe v. Wehbe, 2016 ONSC 3227 at paragraph 58: “The Courts have confirmed that a party’s limited financial means cannot be used as a “shield” against costs orders.”

14Taking all of the factors outlined in Rules 18(14) and 24(11) of the FLR’s into consideration, the Respondent Mr. Ortiz shall pay to the Applicant Ms. Sarmiento $15,000.00 in costs for the motion.

15This order shall be enforced by the Family Responsibility Office.