Court File and Parties
COURT FILE NO.: FC-15-1398 DATE: 20190426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDA VODDEN Applicant – and – JORDAN FURGOCH Respondent
Counsel: Jennifer Johnston, for the Applicant Deanna Paolucci, for the Respondent
HEARD: In writing
DECISION ON COSTS
Audet J.
[1] At the conclusion of a six day trial held earlier this year, I was asked to decide which parenting arrangements would be best for the parties’ two young children, Greyson (6) and Willow (4).
[2] Ms. Vodden was seeking an order granting her sole custody of the children with access to Mr. Furgoch every second weekend from Saturday at 9 a.m. to Sunday at 5 p.m., supervised at all times by the paternal grandparents or Mr. Furgoch’s new partner, Cathy Allison. Ms. Vodden also sought ongoing child support from Mr. Furgoch based on an imputed income of $60,000.
[3] Mr. Furgoch sought a joint custodial arrangement with equal time sharing in accordance with a 2-2-3 schedule, as well as a child support order reflecting his estimated income of $35,000 (his position changed to $48,000 per annum during the course of the trial) based on the parenting arrangements that I would decide was best for the children.
[4] For the detailed reasons set out in my earlier Decision in this matter (Vodden v. Furgoch, 2019 ONSC 953), I granted sole custody of the children to Ms. Vodden, with access to Mr. Furgoch every second weekend, from Friday after school to Sunday at 5:00 p.m., to be exercised at his parents’ or Ms. Allison’s residence and/or under their general supervision and presence. I imputed an income of $55,000 per year to Mr. Furgoch for the purpose of child support, and made a child support order accordingly.
[5] If the parties were unable to agree on costs, I invited them to provide me with written submissions. Having received those submissions, this is my decision on costs.
Position of the Parties
[6] Ms. Vodden seeks an award of costs in the amount $35,621.90, enforceable by the Family Responsibility Office (“FRO”), and made up of:
- full indemnity for all fees, disbursements and HST from the date of her comprehensive offer to settle (made on January 9, 2019) until and including the final day of the trial ($26,913.35);
- substantial indemnity (75% recovery) for all fees, disbursements and HST from the April 2018 Settlement Conference until the Applicant’s January 9, 2019 comprehensive offer the settle ($8,708.55).
[7] Ms. Vodden states that her January 9, 2019 Offer to Settle (“January offer”) met all requirements of rule 18, and that since she obtained a result which was more favourable to her than what her offer contemplated, she is entitled to full recovery costs from the date of her offer to the end of the trial. She is of the view that Mr. Furgoch’s behaviour before her January offer justifies an award of costs on a substantial indemnity basis.
[8] Mr. Furgoch offers to pay $7,000 in costs, payable over 24 months by equal monthly payments. He takes the position that he is unable to afford a higher award of costs and that his modest financial means should be taken into account. He argues that the payment of any higher amount of costs will result in financial hardship and cause him to have to borrow money which will further impede his ability to support his children as ordered.
Legal Framework
[9] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under sub-rule 2 (2) of the Family Law Rules, O. Reg. 114/99 (“the rules”). See: Mattina v. Mattina, 2018 ONCA 867.
[10] Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 25.
[11] Sub-rule 24(1) of the rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe (2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.)(Fam. Div). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson. The position each party took at trial should also be examined.
Success
[12] I find that the parties achieved mixed success on all of the issues. While the mother was granted final decision-making authority on all matters pertaining to the children, I gave the father decision-making authority over the children’s religious upbringing. While the mother was granted primary residence of the children, I provided the father with more access than what she was prepared to give at trial, and I did not impose formal supervision of that access, although, I did order some flexible supervision and a requirement that such access be exercised in the paternal grandparents’ or Ms. Allison’s homes. On the issue of child support, I did not impute the level of income sought by the mother, but I did impute a higher income than what the father was proposing.
[13] Overall, however, it is clear that the mother achieved a much higher degree of success than the father on all issues, the most important of which were the issues of decision making and primary residence. As such, she is presumptively entitled to costs.
Offers to Settle
[14] The mother’s January Offer to Settle made one month before the beginning of trial, met all of the requirements of rule 18 and was as favourable as, or more favourable to the father than the outcome he achieved at trial on all issues with the exception of the father having obtained decision-making authority (with limitations) with regards to the children’s religious upbringing.
[15] I do not consider that this slight difference between my order and the mother’s January offer is such that it should preclude the mother from recovering her full costs from the date of her offer, as set out in rule 18. As stated in Wilson v Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order.
[16] I find that the mother’s January offer was as favourable as, or more favourable to the father than the outcome he achieved at trial. As such, the mother is entitled to her full costs from January 9, 2019 to the end of the trial.
Fees and Disbursements Charged
[17] I have reviewed in details the time and expenses charged by counsel for the mother, and find them to be reasonable. From the day following the April 8, 2018 Settlement Conference, up until the end of the trial, the total fees charged (including disbursements and HST) amounted to $38,708.31. A total of $25,449.41 ($22,521.60 in fees + HST) was charged to the mother from the date of her January offer to the end of the trial. From the date of the April 2018 Settlement Conference to the date of her January 2019 offer, the mother was charged a total $11,823.31 (inclusive of disbursements and HST).
[18] Counsel for the mother, who completed most of the work, charged an hourly rate of $225 in 2018 and of $250 in 2019. She was called to the Bar in 2012, and as a lawyer with six years of experience, I find that her hourly rate is reasonable. Disbursements charged were also appropriate and reasonable.
[19] Since I was not provided with a Bill of Costs from the father, I cannot assess proportionality in relation to what was charged by his own counsel for the same amount of work. However, the father does not take the position that the fees and expenses charged to the mother were unreasonable.
Reasonableness of the Parties
[20] While I agree that the father’s position on the parenting issues was very hard to maintain, in light of the OCL’s strong support for the mother’s position, and the fact that the father had not followed any of its recommendations and suggested therapies, I do not find that it amounted to unreasonable behaviour which should trigger an award of cost on a higher scale than partial indemnity costs. While I accept that the father’s conduct during the trial and during the weeks that led to it was not always helpful in keeping the costs down, overall, I do not find that it reaches the level of unreasonableness.
[21] I find that the mother’s behaviour throughout was very reasonable. She chose not to pursue retroactive adjustments of child support and special expenses to keep the cost of the trial as low as possible. She made reasonable Offers to Settle. She consented to the father filing an OCL dispute even though he was nine months late. She and her counsel were cooperative and helpful in assisting the father’s counsel in getting up to speed on the file given the late date of her retainer for the trial.
The Father’s Ability to Pay
[22] The father takes the position that he cannot afford to pay the significant amount of costs sought by the mother. He states that in light of my order imputing to him a $55,000 income, which he says he is not currently earning, he is already paying child support based on a higher income than what he is earning.
[23] The father’s net monthly earnings (based on his employment income of $48,000) is approximately $3,113 per month. After he has paid his child support, proportionate share of the children’s s. 7 expenses, his rent and other necessary expenses (car, phone, life insurance, student loans and groceries), he only has $356 available to him for other discretionary expenses.
[24] In addition, the father argues that he has monthly counselling costs of $150 per month to pay and that he must put money aside to pay for the psychological assessment which, pursuant to my order, must be completed before the father can ask for a review of his access with the children. This, according to him, will cost between $4,500 and $8,000.
[25] I agree that a payor’s ability to pay can be a relevant factor is assessing costs, particularly in custody and access disputes; Sloan v. Sloan. In Sloan, the court recognized the payor’s financial situation, his ability to pay and the impact that a substantial indemnity cost award would have on his ability to pay child support. This conclusion was also arrived at by the court in Thompson v. Drummond, 2018 ONSC 4762, 13 R.F.L. (8th) 92.
[26] In this case, however, I have imputed on the father an income of $55,000 because I found that he was able (and in fact intended) to continue to work on a part-time, casual basis for various employers including the Royal Ottawa Hospital where he has access to a lot of work hours and can chose to take on work as his schedule allows. To accept that the father’s income is only $48,000 for the purpose of assessing costs would be to ignore my clear findings that he is capable of earning $55,000 per annum based on the evidence provided by the parties at trial.
[27] But even at that level of income, I accept that a significant costs order might seriously impact on the father’s ability to meet his child support obligations and his basic living expenses. However, I cannot ignore that the mother was required to fund the expenses of a six day trial, which she was also unable to afford, in circumstances where:
a. it ought to have been clear to the father that there was a very high possibility that the mother would achieve success at trial; b. if the mother was successful, he would be facing an important cost award; c. in light of the offer that the mother made, should the father fail to succeed at trial he would face a significant award of costs, approaching (if not meeting) full indemnity costs.
[28] In Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.), the court found that the respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessary litigation. As stated above, one of the purposes of the court’s ability to award costs is to encourage the parties to settle their cases. I cannot ignore the fact that the mother, in this case, made a very reasonable Offer to Settle on January 9, 2019 which, if accepted by the father, would have saved this family thousands and thousands of dollars and resulted in a more favourable outcome for the father.
Conclusions
[29] In the end, I find that the mother is entitled to her full costs from the date of her January offer to the end of the trial, which are fixed at $26,913.35. I decline to make an award of costs for the fees incurred before the mother’s January Offer to Settle was served. This is based on the fact that I did not find that the father behaved unreasonably during that time, and it is also the way in which I factor in the father’s reduced ability to pay what is already a significant award of costs.
[30] The above costs will be paid at the rate of $200 per month until fully repaid. This monthly amount may be reviewed on a yearly basis at the same time as the parties review their child support obligations. I have also decided to make the entire award of costs payable as support for the purpose of enforcement by the Family Responsibility Office. I am making this order based on the following reasons:
a. In light of the father’s limited ability to pay, I have not awarded any costs for the work completed prior to the January offer, although given the above reasons, some would have otherwise been awarded; b. I am allowing the father to repay the cost award at the rate of $200 per month and, at that rate, it will take him years to repay them. In the meanwhile, the mother has already been forced to pay those amounts (and more) despite her equally limited financial means; c. Given the above, it would be significantly unfair if the father was allowed to avoid the payment of this cost award by a subsequent bankruptcy or otherwise, or to force the mother to disburse additional legal fees in attempts to obtain full payment of those costs.
Madam Justice Julie Audet