COURT FILE NO.: FC-05-1803-1
DATE: 2018/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sabah Davis
Applicant
– and –
David Davis
Respondent
John Guest, Counsel for the Applicant
Self-represented
HEARD: In Writing
Decision on Costs
Justice Engelking
[1] The Respondent, Mr. Davis brought a Motion to Change the order of Mr. Justice Hackland dated August 30, 2005, in January of 2017. The Court released a decision on the Motion to Change on March 7, 2018 and an Amended Reasons for Judgment on April 6, 2018. This is the Decision on Costs for the motion.
[2] Ms. Davis was the successful party on the motion in relation to the appropriate dates for the termination of Mr. Davis support obligations for his sons, and in relation to arrears of child support owing. She was also the more successful party on the issue of quantum of arrears owing. Mr. Davis’ position was that he owed $3,396 in arrears, while Ms. Davis took the position that he owed either $34,978 from 2011 or $46,690 from 2006. The court ultimately found the Mr. Davis owed Ms. Davis $25,082 in arrears of child support. As the successful party on the motion, Ms. Davis is presumptively entitled to costs
[3] Ms. Davis made an Offer to Settle on October 4, 1017, which fixed arrears at $27,000. The outcome of the motion was more favorable to Mr. Davis than was Ms. Davis’ Offer to Settle.
[4] Ms. Davis seeks $500.00 in costs for the period during which she was self-represented, and $11,098.02 for fees, disbursements and HST after becoming represented. Ms. Davis’ counsel indicates that he charged Ms. Davis $95.00 per hour, although his usual rate is $185.00 hour. Ms. Davis seeks to recover costs at $185.00 per hour, which is untenable. Her entitlement is to recover costs, or portions thereof, that she spent (or owes), not what her counsel would have otherwise made, had he charged her is usual rate. Ms. Davis’ counsel indicates that he spent 51.5 hours on the Motion. Her counsel’s bill of costs indicate that Ms. Davis paid $4,894.08 in fees and $646.38 HST on the fees, as well as $290.67 in disbursements and $37.79 HST on the disbursements, for a total $5858.92 in fees, disbursements and HST.
[5] The Ontario Court of Appeal has held that the family law rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and ; (3) to discourage and sanction inappropriate behaviour by litigants.”[^1] Under Rule 24(11) of the Family Law Rules prior to July 1, 2018, the court was to consider a number of factors, including the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of the parties’ behaviour, the lawyers rates, the time properly spent on the case and expenses properly paid. The new Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.^3
[6] In this case, the termination of support for the two elder children and the fixing of arrears of child support was important to both parties.
[7] Ms. Davis has submitted that Mr. Davis behaved unreasonably and Mr. Davis has submitted that Ms. Davis behaved unreasonably. I do not find that the acts complained of by either amount to the kind of unreasonableness which would attract costs consequences, but for the fact that Mr. Davis made no offer to settle. As Summers J. observed in Joachim v. Denis,[^4], Summers, J observed: “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.”
[8] I find that the lawyer’s rates, time spent on the file and the disbursements paid are appropriate, as is the request for $500.00 costs for Ms. Davis’ time while she was unrepresented.
[9] The Offer to Settle made by Ms. Davis does not attract substantial indemnity pursuant to Rule 18(14) of the Family Law Rules as the result of the motion was more favorable to Mr. Davis than was the offer.
[10] When one adds $500 for Ms. Davis’ self-represented period on the file to her counsel’s bill of costs of $5858.92, the total is $6,358.92. Ms. Davis shall be entitled to partial indemnity costs of $3815.35.
Order
[11] My order is as follows:
The Respondent shall pay the Applicant $3815.35 for costs of the Motion to Change;
Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
The Respondent shall provide to the other party and the Director of the Family Responsibility Office notification of any change in address or employment including full particulars about the change within ten (10) days of the change taking place.
This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
Engelking J.
Released: December 31, 2018
COURT FILE NO.: FC-05-1803-1
DATE: 2018/12/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sabah Davis
Applicant
– and –
David Davis
Respondent
REASONS FOR JUDGMENT
Engelking J.
Released: December 31, 2018
[^1]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10
[^2]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am.
[^4]: 2018 ONSC 1593, paragraph 14