COURT FILE NO.: FS15-165(M1)
DATE: 20180517
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.D., Applicant, and
T.S., Respondent
BEFORE: Justice C.J. Conlan
COUNSEL: Geoffrey Wells, for the Applicant
Ross H. Thomson, for the Respondent
ENDORSEMENT ON COSTS
Conlan J.
I. Introduction
[1] On April 10, 2018, after a one-day trial, in Reasons for Judgment reported at 2018 ONSC 2307, this Court ordered as follows, summarized at paragraph 43 of the said Reasons:
[43] To summarize, (i) T.S. shall pay child support for the three children in the amount of $1266.00 monthly, commencing May 1, 2018, based on an annual gross income of $65,123.00, (ii) T.S. shall pay $239.00 per month towards the children’s section 7 expenses (excluding future post-secondary costs, if any), plus, in the event that the children’s medical and dental costs surpass $3400.00 in any given year, and upon J.D. providing written proof of those expenses to T.S., T.S. shall immediately pay one-half of the amount in excess of $3400.00, and (iii) T.S. shall pay $7714.00 in base child support arrears for the period between December 1, 2015 and April 1, 2018, plus $7000.00 in section 7 arrears for the period between September 2015 and April 1, 2018.
[2] At paragraph 44 of the said Reasons, I indicated that “J.D. has been largely successful and is presumed to be entitled to some costs”. As the parties have been unable to resolve that issue, written submissions were filed.
II. The Law of Costs
[3] As per Rule 24 of the Family Law Rules, in determining the quantum of costs that are presumed to be owing to J.D., this Court should consider the nature of the case, the behaviour of the parties, the lawyer’s rates, the time properly spent on the matter, proper expenses, and any other relevant item.
[4] “Any other relevant item” includes settlement offers, whether they would normally attract full recovery costs or not.
[5] The goal is to make an award that is fair, just, and reasonable in all of the circumstances, including the prudent expectations of the losing side.
[6] Modern costs awards are designed to (i) partially indemnify successful litigants, (ii) encourage settlement, and (iii) discourage or sanction inappropriate conduct by litigants.
III. The Positions of the Parties
[7] J.D., the mother, largely successful after trial, seeks $20,000.00 in costs, all-inclusive, enforceable as child support.
[8] T.S., the father, largely unsuccessful after trial, suggests that $10,000.00 in total in favour of the other side is sufficient.
IV. Conclusion
[9] The materials filed by J.D.’s counsel illustrate that the mother was more active and more reasonable in trying to settle the case before trial (I should note that Mr. Thomson, for T.S., inherited the file from another lawyer not long before the trial date).
[10] The mother’s position at trial was also much more reasonable than the father’s. Frankly, although I accept that T.S. loves his children and is a positive influence in their lives, he is less than eager to support them financially, at least to the degree that he is capable of.
[11] I disagree with T.S. that there is anything excessive in the Bill of Costs filed by J.D.’s counsel. I do agree with Mr. Thomson, however, that some of the issues were resolved on consent and were not the subject of trial evidence.
[12] Commonly, consent orders do not attract any costs payable to either side. In the circumstances, therefore, and given the principle of proportionality, some reduction in the quantum of costs sought by J.D. is in order.
[13] T.S. shall pay costs to J.D. in the total, all-inclusive amount of $15,000.00. Unopposed, and clearly appropriate given that the trial dealt exclusively with child support, the costs shall be enforced by the Family Responsibility Office as child support.
Conlan, J.
DATE: May 17, 2018
COURT FILE NO.: FS15-165(M1)
DATE: 20180517
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.D., Applicant and
T.S., Respondent
BEFORE: Justice C.J. Conlan
COUNSEL: Geoffrey Wells, for the Applicant
Ross H. Thomson, for the Respondent
ENDORSEMENT ON COSTS
Conlan, J.
DATE: May 17, 2018