Court File and Parties
COURT FILE NO.: FC-09-2433-5 FC-09-2433-9 DATE: 2019/04/08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Francine Michelle Marie Boily, Applicant AND: Christopher John Eaton, Respondent
Counsel: Self-represented (for the Applicant) Deanna Paolucci, Counsel for the Respondent
HEARD: March 22, 2019
Costs Decision
Justice Engelking
[1] This matter was before me on July 17, 2018 on Ms. Boily’s Motion to Change under Court File Number FC-09-2433-5, and again on September 18, 2018 for a discrete trial of an issue, that issue being the support owed by Mr. Eaton from the date of separation to December 31, 2011, under Court File Number FC-09-2433-9. In both cases, I indicated that if liability for costs of the motion and the trial could not be resolved, the parties could arrange an appearance before me to make submissions on costs. The parties provided written submissions on the issue of costs and appeared before me on March 22, 2019. This is my decision on costs for both matters.
[2] In addition to the Motion to Change and Trial of an Issue, both of which I heard, Master Fortier also heard and dismissed a procedural motion brought by Ms. Boily on May 31, 2018. In so doing, Master Fortier ordered that the costs of said motion were to be heard by the judge hearing the Motion to Change. This costs decision will, therefore, also deal with the costs of that motion.
[3] Having considered the parties’ submissions, the bills of costs and the Family Law Rules [1], the court awards the Respondent costs in the amount of $14,500.81, inclusive of HST and disbursements.
Positions of the Parties
[4] The Respondent, Mr. Eaton, submits that he was the successful party on all three hearings, the procedural motion of May 31, 2018, the Motion to Change of July 17, 2018 and the Trial of an Issue of September 18, 2018, and as such is presumptively entitled to a costs award. He submits, moreover, that he made numerous Offers to Settle over the course of the proceedings, and that the outcomes of the hearings were for the most part as favourable or more favourable to him than his Offers to Settle. He submits, therefore, that pursuant to Rule 18(14) of the Family Law Rules, he is entitled to the full recovery of his costs from the date of the Offers. He seeks an order of $26,000 costs.
[5] Ms. Boily takes the position that Mr. Eaton acted in bad faith; she alleges that he historically failed to comply with court orders for disclosure, and he purposely withheld from her information with respect to his true income at various junctures during the life of the file. She also submits that Mr. Eaton revoked an offer after acceptance by her and that this constitutes unreasonable behaviour that should be taken into consideration by the court in determining costs. Ms. Boily seeks an order of full recovery of her costs, and has provided two bills of costs from counsel who acted for her on the Motion to Change and the Trial of an Issue totalling $11,501.71.
The Law
[6] 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.” [2] The new Rule 24(12) of the Rules 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. [3] 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. [4] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [5]
Analysis
May 31, 2018 Procedural Motion
[7] On May 31, 2018, Ms. Boily brought a procedural motion for ongoing financial disclosure which was dismissed by Master Fortier. On May 23, 2018, Mr. Eaton made a formal Offer to Settle to Ms. Boily for the motion to be dismissed and no costs to be payable if the offer was accepted on or before May 24, 2018 at 9:00 a.m. It included a provision that if the offer was accepted after 9:01 a.m. on May 24, 2018 but before the motion, costs would be payable on a full indemnity basis. Ms. Boily did not accept Mr. Eaton’s Offer and proceeded with her motion. The outcome was, of course, consistent with the offer. Mr. Eaton is entitled to the full recovery of his costs from May 23, 2018 to the date of the motion.
[8] Mr. Eaton was then represented by Ms. Fan MacKenzie, and has submitted a Bill of Costs from her which commences May 15, 2018 and continues to June 14, 2018. The latter part of that Bill of Costs would pertain to the July 17, 2018 Motion to Change, at which Ms. MacKenzie also represented Mr. Eaton. From the time the Offer to Settle was made to Ms. Boily on May 23, 2018 to the May 31, 2018 procedural motion, Ms. Mackenzie billed Mr. Eaton $2383.50 in legal fees, and attributed $73.95 in disbursements to the May motion. Total fees, disbursements and HST from the date of the Offer to May 31, 2018 is $2776.92, and Mr. Eaton is entitled to full recovery of that amount.
[9] Prior to May 23, 2018, but in relation to the May motion, Mr. Eaton was billed an additional $796.25, which with HST added would equal $899.76. Partial recovery of this sum is $300.00. Ms. Boily shall, therefore, owe Mr. Eaton $3076.92 in costs, inclusive of disbursements and HST, in relation to the May 31, 2018 procedural motion.
July 17, 2018 Motion to Change
[10] On June 11, 2018, Mr. Eaton made a formal Offer to Settle to Ms. Boily, which he later amended on June 18, 2018. Had Ms. Boily accepted the offer of Mr. Eaton between June 11 and June 17, she would have done significantly better that she did as a result of the outcome of the Motion to Change. In any event, the Offer to Settle that was outstanding as of the date of the Motion was that of June 18, 2018, in which Mr. Eaton offered to pay Ms. Boily a lump sum spousal support payment of $13,000 for 2012 and a lump sum spousal support payment of $5000 for 2013. The end result of the Motion to Change, after a calculation error was corrected on April 4, 2019 by way of an Order on Rule 25(19)(b) motion, was that Mr. Eaton was to pay Ms. Boily lump sum spousal support payments of $9,475 for 2012 and $5574 for 2013. The outcome of the Motion to Change as it pertains to spousal support payable by Mr. Eaton was more favourable to him than that which he had offered for 2012. It was, however, slightly less favourable to him than his offer in relation to 2013. As a result of this, and my finding in paragraph 56 of the Reasons for Decision that Mr. Eaton “consistently failed to comply with paragraph 5 of Justice Polowin’s order” regarding annual disclosure, I cannot find that he is entitled to full recovery costs.
[11] Two bills of costs were provided with respect to Ms. MacKenzie’s fees and disbursements between May 15 and July 6, 2018. The first, to which I have referred above, is dated June 14, 2018 and the second is dated July 12, 2018. I have dealt with the first up to and including the motion of May 31, 2018. From May 31, 2018 to July 6, 2018, Ms. MacKenzie billed Mr. Eaton an additional $796.25 in fees, which would result in $103.51 in H.S.T. In the second bill of costs, Ms. MacKenzie charged Mr. Eaton fees of $6,984.25, H.S.T. on fees of $907.95, disbursements of $97.25 and $8.46 H.S.T. on disbursements, for a total of $7,997.91.
[12] Thus, Ms. MacKenzie’s fees, H.S.T. and disbursements attributable to the July 17, 2018 motion were $8,897.67, partial recovery of which is $2965.89. Ms. Boily shall be required to pay Mr. Eaton costs of $2965.89 for the July 17, 2018 motion.
September 18, 2018 Trial of an Issue
[13] By letter dated March 14, 2018 and Offer to Settle dated April 18, 2018, Mr. Eaton offered to resolve the issue of support payable between October 2009 and December 2011 as follows: no support for the last three months of 2009, $1268 per month in child support for 2010 with no spousal support payable for 2010, and $598 per month in child support with no spousal support payable for 2011. The April offer was in anticipation of the court appearance of April 26, 2018 (at which the necessity of a trial of an issue was identified), and was valid until one minute after the start of the motion. The hearing was ultimately set to proceed on September 18, 2018, and Mr. Eaton made three more Offers to Settle as follows:
- August 9, 2018 – that the parties agree that all payments made between separation and December 31, 2011 constitute full and final settlement of all child and spousal support claims for that period, and that Ms. Boily pay Mr. Eaton $2500 in costs, which would be enforced by the Family Responsibility Office;
- August 28, 2018 – $2510 per month in child support for October through December 2009, $1489 per month in child support for 2010, $722 per month in child support for 2011, $0.00 for spousal support in 2009, a lump sum payment of $8,151 for spousal support in 2010, and a lump sum payment of $418 for spousal support in 2011.
- September 17, 2018 - $2609 per month in child support for October through December 2009, $1300 in child support per month in 2010, $719 per month in child support in 2011. This offer also provided that Mr. Eaton be credited for $20,000 of direct payments and that Ms. Boily pay him $4000 in costs.
[14] Ms. Boily submits that she accepted Mr. Eaton’s Offer to Settle dated August 9, 2018, except that she didn’t agree with costs being enforced by FRO. She made a counter-offer to Ms. MacKenzie, who indicated that she was unable to obtain her client’s instructions as she was going to court, but made a further inquiry of Ms. Boily. Ms. Boily responded to the inquiry in the positive and was therefore of the position that an offer had been made and accepted by Mr. Eaton, upon which he later reneged. However, Ms. MacKenzie’s response to Ms. Boily was that Mr. Eaton did not accept her counter-offer and revoked his August 9, 2018 offer. Given Ms. MacKenzie’s clear indication that she was not in a position to receive her client’s instructions during the earlier exchange, I cannot find that an offer was made, accepted and reneged upon. Once Ms. MacKenzie obtained Mr. Eaton’s instructions, she communicated them to Ms. Boily, clearly stating that her counter offer was not accepted. I find that there was no offer and acceptance in regards to Mr. Eaton’s August 9, 2018 offer and Ms. Boily’s counter offer in relation thereto.
[15] On September 4, 2018, Ms. Boily made an Offer to Settle as follows:
- $5,326 per month in child support and $5,976 per month in spousal support payable by Mr. Eaton for October through December 2009;
- $2839 per month in child support and $1,255 per month in spousal support payable by Mr. Eaton for 2010;
- $641 per month in child support payable by Mr. Eaton for 2011.
[16] In my Reasons for Decision dated November 26, 2018, I found that there was no child or spousal support payable for October through December of 2011, $1,268 per month in child support and no spousal support was payable by Mr. Eaton for 2010 and $624 per month in child support and no spousal support was payable by Mr. Eaton for 2011.
[17] The outcome of the trial was more favourable to Mr. Eaton on all of the terms of his Offers to Settle of August 28 and September 17, 2018. It is unclear to me as to whether was more favourable than his August 9, 2018 Offer to Settle, as no submissions were made on as to what the sum actually paid by Mr. Eaton to or on behalf of Ms. Boily between separation and December 31, 2011 actually was. The outcome of the trial was much less favourable to Ms. Boily than her Offer to Settle of September 4, 2018. I am of the view that Mr. Eaton is entitled to the full recovery of his cost from August 28, 2018 onwards.
[18] At the Trial of the Issue, Mr. Eaton was represented by Ms. Paolucci, whose bill of costs from September 13 to September 18, 2018 totalled $7,485 in fees for 32.5 hours spent on the file. The bill also contains a flat printing rate of $400, but I am not inclined to have Ms. Boily pay without an accounting of what was actually spent. Thirty-two and a half hours is not unreasonable, given that Ms. Paolucci appears to have taken the file on rather late and had to prepare in a very condensed period of time. Although the August 28, 2018 Offer to Settle was sent by Ms. MacKenzie, I have been provided no bill of costs for her past July 6, 2018. I find that Ms. Boily must pay the costs of Mr. Eaton for the September 17, 2018 trial of issue in the amount of $8,458.00, inclusive of fees and H.S.T.
Order
[19] My order is as follows:
- The Applicant shall pay to the Respondent costs in the total sum of $14,500.81 for the Procedural Motion of May 31, 2018, the Motion to Change of July 17, 2018 and the Trial of an Issue of September 18, 2018;
- This order shall be enforced by the Family Responsibility Office as all costs ordered are in relation to issues of child and spousal support. They shall be included as a credit to Mr. Eaton in the adjustments to be made by FRO as ordered in my Reasons for Decision of July 17, 2018 and November 26, 2018.
Engelking J
Released: April 8, 2019
COURT FILE NO.: FC-09-2433-5 FC-09-2433-9 DATE: 2019/04/04 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Francine Michelle Marie Boily Applicant AND: Christopher John Eaton Respondent cost decision Engelking J.
Released: April 8, 2019
[1] O. Reg. 114/99, as am. [2] Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [3] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [4] Ibid. [5] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.