Court File and Parties

COURT FILE NO.: FC-01-1249-02 DATE: 2019/06/03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LINDA MICHELINE GLAZER Applicant – and – THOMAS HILL Respondent

Applicant, Self-Represented Respondent, Self-Represented

HEARD: In writing

Costs Endorsement

[1] This is the costs decision on this motion to change, following my decision released on February 5, 2019 Glazer v. Hill, 2019 ONSC 809.

[2] This was a motion to change child support. The Applicant, Ms. Glazer, sought an order that the Respondent, Mr. Hill, owed her significant child support of at least $154,000 dating back to 2002. Mr. Hill sought to terminate child support given that the child had graduated from college. In my decision, I ordered that the child support be increased effective May 1, 2016, that the child support be terminated effective May 31, 2018, fixed s.7 expenses, and dismissed Ms. Glazer’s claim for other retroactive child support and contribution towards other s.7 expenses.

[3] Both parties have provided written submission on costs.

[4] Having considered the parties’ submissions, Mr. Hill’s bill of costs, and the Family Law Rules [1], I order Ms. Glazer to pay costs to Mr. Hill fixed in the amount of $6,500, inclusive of tax and disbursements. These costs shall be payable at the rate of $300 per month, commencing June 15th, 2019 and continuing on the 15th day of each subsequent month until paid in full. In the event that Ms. Glazer defaults on any monthly payment, in full or in part, the full amount of costs shall become payable in full as of the date of default.

Mr. Hill’s Position

[5] Mr. Hill seeks costs fixed at $12,739.99, being 90% of his total claimed costs of $14,155.55.

[6] Mr. Hill primarily relies on the offer to settle that he made, dated June 21, 2018. His position is that the outcome of the motion was as favourable as or more favourable to Mr. Hill than his offer.

[7] Mr. Hill also argues that Ms. Glazer’s behaviour was unreasonable by seeking relief (a restraining order) that was based on allegations regarding contact that had taken place years earlier, attempting to re-litigate issues that had previously been resolved by consent orders, not agreeing to Mr. Hill ceasing the child support payments prior to the motion, even though she agreed that the child’s entitlement to support ceased as of May 31, 2018, and in failing to provide disclosure.

Ms. Glazer’s Position

[8] Ms. Glazer argues that Mr. Hill should not be awarded any costs because court was only necessary due to Mr. Hill’s refusal to respect his responsibilities and provide for the child. Ms. Glazer criticizes Mr. Hill’s conduct for failing to negotiate and reach an agreement with her. She describes his conduct as failing to act in good faith. She is critical of how Mr. Hill proceeded with this matter and takes the position that this matter could have been dealt with more efficiently through her proposed process, being a trial.

[9] Ms. Glazer has provided her own bill of costs, which totals $3,167.29 based on 98 hours of her time at $30 per hour.

[10] If costs are awarded, Ms. Glazer argues costs should be limited to 30% of the total costs claimed by Mr. Hill (being 30% of $14,155.55 = $4,246.66) due to the disparity between their respective financial situations and her own financial hardship. Ms. Glazer further requests that any costs be payable at the rate of $80 to $90 per month.

Factors in Determining Costs

[11] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants and to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules) [2].

[12] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs [3]. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party [4].

[13] Rule 18(14) of the Family Law Rules provides that a party is, unless the court orders otherwise, entitled to costs on a full recovery basis from the date an offer is served, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18(14).

Success of the Parties

[14] Mr. Hill was the successful party on the motion to change and is presumptively entitled to an award of costs.

Offers to Settle

[15] Mr. Hill served an offer, dated June 21, 2018. The outcome of the motion was as favourable as or more favourable to Mr. Hill than his offer. Ms. Glazer, in her submissions, does not dispute that the offer was served on her and that it was not withdrawn. Mr. Hill is therefore entitled to costs on a full recovery basis from the date of his offer.

[16] Mr. Hill has produced two invoices from the lawyer that assisted him in the preparation of his court material. In January of 2018, Mr. Hill was billed the sum of $5,689.55, inclusive of tax and disbursements, for legal fees related to the preparation of Mr. Hill’s affidavit and financial statement. This included 18.20 hours of his lawyer’s time. His lawyer was called in 1992 and charged Mr. Hill an hourly rate of $275. I find these fees to be reasonable and proportional to the issues and complexity of this matter, which included responding to numerous claims advanced by Ms. Glazer dating back to 2002. These fees were, however, incurred prior to the service of Mr. Hill’s offer.

[17] The second invoice was issued on February 15, 2019 and is for legal services to prepare Mr. Hill’s cost submissions. This invoice if for $1,243, inclusive of tax, based on 4 hours of time. These fees are also reasonable and proportional. These fees were incurred after the service of Mr. Hill’s offer.

[18] Mr. Hill has provided the invoices for the courier charges. Courier charges of $114 were incurred prior to the service of the offer; courier charges of $57 were incurred after the service of the offer.

[19] I accept that Mr. Hill’s photocopy fees of $100 were also incurred to produce his court material. No date is provided for this disbursement. Given the work that was done on Mr. Hill’s affidavit in January of 2018, I find on a balance of probabilities that these charges were incurred prior to the service of Mr. Hill’s offer.

[20] The other costs claimed by Mr. Hill are for his own time. Mr. Hill claims that he spent 88 hours, the bulk of which was spent on preparing his court material and preparing for court attendances. Mr. Hill seeks that his costs be calculated based on applying a rate of $79 per hour, which he states is his hourly rate. His total claim for his time is $6,952.

[21] Although self-represented litigants may recover costs to compensate them for their own time spent doing tasks that would have ordinarily been done by a lawyer, they are not entitled to recover costs for the time and effort that any litigant would have to devote to the case.

[22] There are two concerns with Mr. Hill’s claim for costs for his own time. The first is that Mr. Hill does not differentiate what time he spent prior to or after his offer was served. The second is that Mr. Hill does not specifically identify or differentiate what time was spent on tasks that would have ordinarily been done by a lawyer, as compared to time spent on tasks required by any litigant.

[23] Mr. Hill did spend time on this matter after his offer was served, including, in particular, in scheduling the motion to change and preparing for argument on the motion. Ms. Glazer did not specifically take issue with Mr. Hill’s claimed hourly rate, although she objects to paying costs for other reasons. Given the lack of information provided by Mr. Hill on the time he spent, as well as the legal services for which he paid, I am prepared to find that Mr. Hill may claim 20 hours for time spent on tasks that would have ordinarily been provided by a lawyer, and allow him a rate of $70 per hour, for a total amount of $1,400. I find this amount to be reasonable and proportional in the circumstances.

[24] Given the above, Mr. Hill’s reasonable and proportional costs incurred prior to the service of his offer total $5,903.55 and $2,700 after the service of his offer.

Other Factors

[25] I do not find that Mr. Hill’s behaviour was unreasonable such that the award of costs should be reduced under Rule 24(4). The reasonableness of Mr. Hill’s conduct in attempting to resolve this matter is confirmed by his offer to settle. There is no basis upon which to find that Mr. Hill acted in bad faith or that a trial would have presented a more efficient manner of resolving these issues.

[26] I do find that Ms. Glazer’s conduct was unreasonable, particularly in her insistence on attempting to re-litigate a number of issues previously resolved, many years ago, under the 2004 and 2013 court orders. These issues significantly increased the complexity of the matter and lengthened the proceedings.

[27] A significant factor in Ms. Glazer’s current financial circumstances are the significant legal fees that she has incurred litigating with Mr. Hill since 2002. Both parties have incurred significant legal fees over their extensive litigation history. I do not find that this is a basis to reduce the award of costs. It is even more important, in these circumstances, to grant an award of costs that encourages settlement and discourages and sanctions inappropriate litigation behaviour, although I am prepared to provide for payment of the costs over monthly installments, as set out below.

Disposition

[28] Taking all of these factors into consideration, I order Ms. Glazer to pay costs to Mr. Hill fixed in the amount of $6,500, inclusive of tax and disbursements. This sum represents full recovery of Mr. Hill’s reasonable and proportional costs incurred after the service of his offer to settle ($2,700), plus approximately 65% of Mr. Hill’s reasonable and proportional costs incurred prior to the service of his offer to settle (65% of $5,903.55). These costs shall be payable at the rate of $300 per month, commencing June 15th, 2019 and continuing on the 15th day of each subsequent month until paid in full. In the event that Ms. Glazer defaults on any monthly payment, in full or in part, the full amount of costs shall become payable in full as of the date of default.

[29] This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).

Family Responsibility Office

[30] Mr. Hill requests that the costs noted above be enforced through the Family Responsibility Office. I am not ordering this. The Family Responsibility Office collects, distributes and enforces child and spousal support payments. The costs owed to Mr. Hill, the former payor of child support, are not support. Mr. Hill has all of the remedies available to enforce payment of this order for costs that are available under the Family Law Rules, including rules 26 to 30.

[31] Mr. Hill also requests that I calculate the various adjustments to child support provided for under the February 5, 2019 decision, including netting out the various payments and overpayments between the parties, including this costs award. I decline to do so, as I declined in my decision of February 5, 2019. The Family Responsibility Office is enforcing the current child support. I leave it to their office to make the necessary support adjustments under the February 5, 2019 decision. Only after the Family Responsibility Office has made those adjustments, and only if, for some reason, a further order is required because the Family Responsibility Office cannot, for example, collect an overpayment of support, may this be brought back before me on a full evidentiary record. To be clear, this is not an invitation for the parties to come back to me seeking that I adjust or net out the amounts owed between them given the terms of my February 5, 2019 decision, or this costs award, or previous cost awards.

Justice P. MacEachern Date: June 3, 2019

Footnotes

[1] Family Law Rules, O. Reg. 114/99, as am. [2] Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 [3] M.(C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40 [4] Berta v. Berta, 2015 ONCA 918 at para. 94