Court File and Parties

KINGSTON COURT FILE NO.: 724/99 DATE: 20181001 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason John Gilpin, Applicant AND Tanya Mullins, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: None for the Applicant Elizabeth French, for the Respondent

HEARD: In Chambers

COSTS ENDORSEMENT

MINNEMA, J.

Issue

[1] This was a Motion to Change (“MTC”) by the applicant that was settled on all issues except for costs. The respondent is seeking partial indemnity costs of $3,390 all-inclusive based on full indemnity costs of $5,893.07. The applicant is asking that there be no order as to costs.

Background

[2] The applicant was seeking to have his child support payments of $573 per month, which were based on him earning $61,680.86 per year, reduced to $411 per month based on a new income of $44,410 per year. He also raised the issue of whether the child Courtney, age 18 at the time, was still in school. The respondent in her Response to Motion to Change asked that the MTC be dismissed and sought an order that the applicant’s income be imputed at the old amount of $61,680.86.

[3] The settlement was based on an offer made by the respondent, which was accepted by the applicant. It does not mirror either party’s original position. Table child support was terminated, the child’s post-secondary educational costs were calculated less the child’s contribution. The parties agreed to pay those expenses proportionally based, in the applicant’s case, on his income imputed at $61,680. As a result his contribution to the child’s support was reduced to $427 per month.

Law

[4] If an accepted offer does not deal with costs, either party is entitled to ask the court for costs: Rule 18(11).

[5] Pursuant to subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are discretionary. I am to assess the costs guided by Rule 24 of the Family Law Rules, O. Reg. 114/99. There is a presumption that the successful party is entitled to costs (subrule 24(1)). If success is divided, the court may apportion costs (subrule 24(6)). Factors such as offers to settle, reasonableness (including a consideration of all offers to settle), preparedness, and bad faith may also effect entitlement: subrules 24(4), (7), (8), and 18(14).

[6] The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances (Murray v. Murray, 79 O.R. (3d) 147 (C.A.)). This includes considering the reasonable expectations of the losing litigant regarding costs (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (Ont. C.A.)). It also includes a consideration of the impact that the cost award will have on the party ordered to pay (see Murray above), and, where applicable, a consideration of its effect on the care, maintenance or interests of children (M.(A.C.) v. M.(D.), 67 O.R. (3d) 181 (Ont. C.A.), Quinn v. Nicholson, 2013 ONSC 1125).

[7] Costs are to be decided promptly after each step in the case; they are not awarded for preliminary steps (conferences and motions) that have been addressed by another judicial officer where the costs have not been reserved: see Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10, and subrules 24(10) and (10.1). This does not mean, however, that the costs order should only relate to matters concerning the hearing. As clarified in Houston v. Houston, 2012 ONSC 233, 12 R.F.L. (7th) 115 (Div. Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule.

Analysis

Success

[8] While the respondent was successful in having income imputed to the applicant at his old rate, the applicant was successful in having his overall support payment reduced. The result is therefore mixed, and neither party is presumed to be entitled to costs.

Offers

[9] This consideration only applies to offers that were not accepted.

Bad Faith

[10] There is no allegation of bad faith as a consideration in assessing costs.

Factors in Costs: Subrule 24(11)

Importance, Complexity or Difficulty of the Issues

[11] While important to the parties in the sense that it involved the appropriate level of child support, in my view this was not a difficult or complex proceeding.

Reasonableness

[12] The court’s ability to determine whether there has been inappropriate behaviour by a litigant based only on submissions, when the court has not adjudicated the merits or received sworn evidence in keeping with the rules of procedural fairness, is very limited.

[13] The respondent asserts unreasonable behaviour by the applicant in the late acceptance of her offer, namely that it was not accepted until after her Settlement Conference Brief was served. The applicant in response indicates that he accepted the respondent’s offer prior to the settlement conference. There is no evidence when the offer was delivered (if not with the Settlement Conference Brief) or whether if accepted promptly it could have eliminated the need for the respondent to prepare a brief. The respondent also complains that the applicant was not prepared for the settlement conference and did not serve and file his brief. Again, the timing is not clear, but he would not need to file a brief after accepting the respondent’s offer.

[14] The respondent also asserts that the applicant made no effort to communicate with her or her legal counsel to negotiate a resolution. The applicant directly says to the contrary that he did. Without evidence, I am unable to make a finding which account is correct.

[15] In summary, there is nothing that satisfies me that either party behaved unreasonably to an extent that would impact these costs deliberations.

Applicant’s Lawyer’s Rates, Time Properly Spent, Expenses Incurred (Subrules 24(11)(c), (d), and (e))

[16] The respondent has not provided an itemized Bill of Costs, but has referred in her submissions to factors quantifying her claim. As noted she indicates that she paid her lawyer $5,893.07 to obtain the final order. This was based on her lawyer’s time of 18 hours at a rate of $300 per hour. Included in the lawyer’s fees are the costs to draft the Case Conference Brief and to attend the case conference including waiting time. I note that the costs of the case conference were not reserved, and it is unknown how much time of the total that represented.

[17] The respondent also points out that the fees she has paid her lawyer include the work done to crunch the numbers and get the matter resolved, prepare the offer that was accepted, and to prepare the draft order. I touch on these aspects further below. Regarding the draft order, the applicant has indicated “[i]t is my understanding that where there is a lawyer and a self-represented party, the lawyer is expected to take out the Orders.” However, subrules 25(2) and (3) actually provide that the party in whose favour an order is made “shall” prepare the draft order, and that if the party in whose favour an order is made does not have a lawyer the other party “may” prepare the draft order. To the respondent’s point, the applicant seemed to have an expectation that the respondent’s lawyer would be looking after the steps to conclude this matter.

Any Other Relevant Matter

[18] I have considered the financial situation of the parties as set out in the materials. It does not have a significant impact on my decision.

[19] Returning to the respondent’s argument above, I agree that where one party retains counsel and the other does not, there can be an unfairness if, as often happens, the party with counsel ultimately ends up paying additional fees to his or her lawyer as a result of added work to bring the matter to a conclusion thereby benefitting both parties. It is apparent to me that with the applicant self-representing, the respondent’s counsel became shouldered with a somewhat greater workload. Her efforts in identifying and preparing a creative framework for compromise was to the parties’ mutual benefit, as was her drafting of the formal offer and taking out the order. It would not be fair, particularly in light of the result, if the respondent were to bear all of her added legal costs for facilitating a smooth and relatively straight-forward and procedurally uncomplicated conclusion without any contribution from the applicant.

Analysis/Summary

[20] The fundamental purposes of the costs rules, as restated in Serra v. Serra at para. 8, are: “(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behavior by litigants.” There is nothing in those considerations that require a costs award here. However, in my view included in the court’s discretion is the authority to apportion the true costs of steps in the litigation that have served to benefit both parties. I find that consideration requires a modest cost order here.

Decision

[21] The assessment of costs is not simply a mechanical exercise (Boucher at para. 26). Having regard to the factors and considerations outlined above, I find that what is fair to the parties and reasonable in the circumstances is to require the respondent to contribute roughly half of the applicant’s full indemnity costs related to the crafting of the formal offer and taking out the order. The applicant shall pay to the respondent $750 for costs, inclusive of HST and disbursements.

Mr. Justice Timothy Minnema Date: October 1, 2018