Court File and Parties
Court File No.: 198/16 Date: 2019 04 23 Superior Court of Justice - Ontario
Re: Joan Thomson, Applicant - and - Thomas Victor Delmoro, Respondent
Before: Lemon J.
Counsel: W. Gerald Punnett, Counsel for the Applicant Colin J. Thurston, Counsel for the Respondent
Heard: In Writing
Costs Endorsement
The Issue
[1] On March 12, 2019, I granted judgment for Mr. Delmoro. I ordered Ms. Thomson to pay child support for two children and dismissed Ms. Thomson’s claims against Mr. Delmoro. I have now received costs submissions from both.
[2] Mr. Delmoro seeks his costs fixed in the amount of $17,151.72. Ms. Thomson acknowledges the requirement to pay costs but submits that they should be fixed in the amount of $6,936.33.
Authorities
[3] In Mattina v. Mattina, 2018 ONCA 867, our Court of Appeal recently said:
[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.
[10] This court has held that modern family cost rules 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. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.
[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.
[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.
[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
i. each party’s behaviour,
ii. the time spent by each party,
iii. any written offers to settle, including offers that do not meet the requirements of rule 18,
iv. any legal fees, including the number of lawyers and their rates,
v. any expert witness fees, including the number of experts and their rates,
vi. any other expenses properly paid or payable; and
(b) any other relevant matter.
[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).
[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[17] Rule 24(5) provides guidance on how to evaluate reasonableness:
In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(b) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(c) the reasonableness of any offer the party made; and
(d) any offer the party withdrew or failed to accept.
[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. [Citations removed]
[4] Just because an award of costs may be on a full recovery basis does not mean that the successful party is entitled to whatever costs were incurred. The court assessing costs is still required to consider all of the factors in such an award. United Soils Management Ltd. v. Mohammed, 2019 ONCA 128.
Analysis
[5] Mr. Delmoro was successful in his claims and Ms. Thomson had her claims dismissed. Accordingly, Mr. Delmoro is presumed to be entitled to his costs.
[6] Ms. Thomson’s counsel sought an adjournment of the trial as she was unable to attend. To that point, she had failed to comply with Court orders for production, costs and child support. Although Ms. Thomson submits that Mr. Delmoro did not have to incur costs preparing for trial, her claims were only dismissed when her adjournment request was denied. Accordingly, Mr. Delmoro’s counsel had to prepare for all of those claims.
[7] In her costs submissions, Ms. Thomson submits: “The Respondent, Thomas Victor Delmoro, had been involved in a business that proved not to be profitable and had to be shut down. There could have been no unjust enrichment in a business that was not viable.” While that is true, that is exactly the claim that she brought until it was dismissed after her request for an adjournment. Her failure to withdraw that claim only increased Mr. Delmoro’s costs. To the start of trial, the hearing was estimated to be two to three days. Mr. Delmoro’s counsel would have had to spend time on what appeared to be a meritless case being pressed to the outset of trial.
[8] Mr. Delmoro does not submit that the costs should be determined on the basis of bad faith. However, as set out above, Ms. Thomson has been unreasonable throughout in failing to comply with interim orders.
[9] Mr. Delmoro made an offer to settle in August of 2017. It was outstanding at the time of trial. He was more successful at trial than his offer. I am not advised of any offers by Ms. Thomson.
[10] Ms. Thomson complains that Mr. Delmoro would have incurred costs for an interim motion and staff time. She says that they are not set out in the bill of costs. That is appropriate; if they are not claimed, they are not added to the bill. The bill of costs appears to set out only the time spent by counsel for the trial process.
[11] Ms. Thomson submits that Mr. Delmoro has incurred unnecessary hours of work in preparation for trial. As an example, she submits that although Mr. Delmoro seeks costs for a trial attendance of four hours, the trial did not take four hours. While the trial itself did not, the time out of the office certainly would amount to that.
[12] From my review of the time spent and the hourly rate charged, I find Mr. Delmoro’s request reasonable.
Result
[13] Accordingly, I order Ms. Thomson to pay costs fixed in the amount of $17,151.72.
[14] I agree with Mr. Delmoro that costs were incurred “for the maintenance and support of the children.” I agree that costs should be enforced through the Family Responsibility Office. However, as set out above, some of the preparation was related to Ms. Thomson’s property claim. I therefore find that costs of $15,000 were incurred by the Respondent, for the maintenance and support of the children. Those costs shall be added to the child support arrears owing by Ms. Thomson to Mr. Delmoro for the children C.E.D. (born July 5, 2000) and M.G.D. (born July 2, 2003), and shall be enforced through the Family Responsibility Office.
Justice G.D. Lemon Date: April 23, 2019