COURT FILE NO.: FC-14-2239
DATE: 2019/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karissa Grenier
Applicant
– and –
Marc Imbeault
Respondent
Alice Weatherston and Emma Costain, for the Applicant
Self-represented
Heard in writing
DECISION ON COSTS
Shelston J.
[1] I have received the applicant’s submissions where she seeks $78,656.48 in costs on a full recovery basis. The respondent failed to submit his costs submission by November 30, 2018 as ordered. I granted him an extension until December 12, 2018. On December 11, 2018, I received the respondent’s costs submissions which contain no written submissions other than a schedule of legal fees and disbursements paid to his previous counsel in the amount of $22,584.64.
Issues before the court
[2] The issues for the trial were custody, a parenting schedule, income determination of the parties, commencement date for child support, ongoing and retroactive table child support, section 7 expenses, extended health care, security for support and costs.
Legislative and jurisprudential framework
[3] In making this decision, I have considered the various factors set out in subrule 24(12) of the Family Law Rules, which reads as follows:
(12) In setting the amount of costs, the court shall consider,
(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.
[4] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. It reads as follows:
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[5] In Mattina v. Mattina, 2018 ONCA 867, the court set out the four fundamental purposes of costs being to partially indemnify successful litigants, to encourage settlement, to discourage and sanction inappropriate behaviour by litigants and to ensure that cases are dealt with justly.
[6] In Beaver v. Hill, 2018 ONCA 840, the court indicated that costs awards are discretionary and two important principles in exercising discretion are reasonableness and proportionality. The failure of an offer to settle to contain a true element of compromise is a factor to be considered in deciding whether the offer properly impacts on the appropriate award of costs.
[7] Family law litigants are responsible for and accountable for the positions they take in the litigation (see Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141).
[8] 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 (see Wilson v. Kovalev, 2016 ONSC 163.)
[9] Even if the terms of subrule 18(14) are followed, the court still has the discretion not to order full recovery costs (see C.A.M v. D.M. [2003] (OCA)).
Successful party
[10] The applicant was the successful party on custody, the parenting schedule, child support, and two of the three section 7 expenses claimed. She was not successful on the claim for life insurance or the commencement date of support.
[11] The main issues were custody and support. The respondent made very serious allegations against the applicant related to parent alienation. I rejected his claims.
[12] The parties consented to certain ancillary orders regarding custody and access but not all. Their success was divided on these issues. I denied the applicant’s request that the Labour Day weekend and Thanksgiving weekend would be alternated or shared and ordered that these weekends follow the regular access schedule.
Importance and complexity of the issues before the court
[13] The main issues of custody and support were important but not difficult or complex.
The reasonableness or unreasonableness of each party’s behaviour
[14] I find that the respondent engaged in unreasonable conduct by not being prepared for the trial, for failing to provide disclosure ordered on two separate occasions and failing to make any offer to settle after June 2015.
[15] Specifically, the respondent failed to comply with orders of the court regarding disclosure. He failed to produce the applications for employment ordered by Justice Audet on June 26, 2017 and he never responded to a series of correspondence sent by counsel for the applicant where she requested proof of his paystubs, a copy of his 2017 income tax return, an updated financial statement and disclosure as to his current circumstances.
[16] The respondent failed to abide by the order made at the Trial Management Conference when he attended on the first day of trial with a large package of documents that he intended to file and rely upon in the trial. Any such documents were to be served 30 days before the trial. I ordered that the matter be adjourned to the next day at 10 a.m. and that the respondent serve counsel for the applicant with a tabbed document book, which he did. His breach of the order caused a delay of one day at the beginning of the trial.
[17] Further, the respondent failed to comply with the order for disclosure until just before the commencement of the trial and only provided his financial statement on day two of the trial.
[18] The applicant made four formal offers to settle being December 1, 2014, October 24, 2016, September 13, 2018 and January 23, 2018. The respondent did not make any offers to settle after July 2015 or reply to any of the four offers.
[19] I was not provided with any offers made by the respondent. However, counsel for the applicant states in her submissions that no offers were made by the respondent after June 2015. Upon reading the respondent’s previous counsel’s account, her last entry was in July 2015 after which time the respondent was self-represented.
Custody
[20] The applicant made significant efforts to avoid proceeding to a trial. In her offer dated December 1, 2014, the offer was divided into three parts and any part of the offer could be accepted separately or the offer could be accepted in its entirety. The major points of this offer were that the applicant was granted custody and the respondent was granted access every second weekend as well as Tuesday evenings from after school to 6:30 p.m. There were standard provisions regarding holidays, the right of each parent to obtain inquiries and receive information regarding third parties involved with their children, and specifically addressing the respondent’s obligation to take the children to hockey practice and games.
[21] This offer was withdrawn on October 24, 2016 and replaced with a new offer dated the same day which proposed a settlement of the custody and access issues whereby the applicant would be granted sole custody of the children and the respondent would be granted access. This offer was not responded to.
[22] The applicant made an offer dated January 23, 2018 where she offered joint custody with the parties retaining a parenting coordinator, but that the children would reside with the applicant and the respondent would have access to the children every second weekend from Friday after school or 4:30 p.m. until Sunday at 6:30 p.m. as well as every second Tuesday after school or 4:30 p.m. until Wednesday when returning the children to school or 8 a.m. In this offer the applicant required the respondent to take both boys to their hockey practices and games and that the parties participate in individual therapy as recommended by the assessor.
[23] Finally, on the eve of trial on September 13, 2018, the applicant served a final offer where she proposed joint custody with no parenting coordinator, access to the respondent every second weekend as well as every second Tuesday overnight from 5 p.m. to Wednesday morning and requiring the respondent to take the boys to hockey and that the parties would attend individual counseling.
[24] In my decision, I granted the applicant sole custody and awarded the respondent access every second weekend as well as every second Wednesday from 4:30 p.m. to 7:30 p.m. I also ordered the respondent to ensure that he take the children to their extracurricular activities while they are in his care.
Child support
[25] The applicant made three offers dealing with child support. In her offer dated December 1, 2014, the applicant sought child support arrears of $5,902.37 and table child support of $910 per month commencing January 1, 2015.
[26] In the applicant’s offer dated January 23, 2018, she sought child support arrears of $4,900 as of December 31, 2017 and that commencing January 1, 2016, the respondent would pay table child support the amount of $459 per month.
[27] In the final offer to settle dated September 13, 2018, the applicant agreed to waive child support arrears as of December 31, 2017, and that commencing September 1, 2018, the respondent would pay table child support amount of $459 per month.
[28] In my trial decision, I ordered that commencing October 1, 2018, the respondent pay to the applicant table child support of $459 per month, 50% of the section 7 expenses and set child support arrears at $11,361 to be paid back in monthly installments of $236.69 commencing December 1, 2018.
Lawyer’s rates
[29] I find that the lawyer’s rates sought by the applicant are reasonable.
Time properly spent and expenses properly payable
[30] My role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).
[31] The applicant provided a detailed bill of costs indicating that the total legal fees inclusive of HST totaled $95,901 of which $23,465.30 related only to parenting and child support issues from December 1, 2014 until December 31, 2017 and that from January 1, 2018, the legal fees are $55,625.95.
[32] I note that partial indemnity costs total $52,201.89 inclusive of HST and substantial indemnity total $63,273 inclusive of HST. Included in her bill of costs is time for a second lawyer at the trial, Ms. Costain (billed at half her normal rate). This case did not require two lawyers for the applicant. I have disregarded Ms. Costain’s time to attend the trial.
[33] The applicant also incurred $2,603.20 for the assessor’s report which was paid from the proceeds of sale of the matrimonial home and additional $1,356 to pay for her to attend the trial. I find these expenses are reasonable and necessary in this matter.
[34] I find that the disbursements of $2,299.09 to be necessary and reasonable
Any other relevant matter
[35] The jurisprudence directs that I am to consider the respondent’s ability to pay the costs order (see MacDonald v. Magel (2003) 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (Ont.C.A.)).
[36] A party’s limited financial circumstances cannot be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune (see Snih v. Snih, 2007 CanLII 20774).
[37] The applicant seeks an order that the costs be enforced as child support. The respondent has not paid the cost award at the Trial Management Conference, went bankrupt during these proceedings and failed to provide the most basic disclosure despite numerous court orders. The Court of Appeal in Clark v. Clark 2014 ONCA 175 confirms that trial judges have considerable discretion concerning a request that legal costs be designated as support for the purpose of enforcement. Specifically, the court stated at paras. 80 and 81 the following:
[80] It is appropriate to address one additional aspect of Gregory’s challenge to the Costs Order at this stage. Gregory argues that only costs related to support are eligible for enforcement by the FRO under the Act. Accordingly, he submits, the trial judge erred by failing to identify those costs of the trial that were unrelated to support issues and by failing to direct that only those costs relating to support should be enforceable by the FRO.
[81] The decision of this court in Wildman provides a full answer to this claim. In Wildman, a similar argument was advanced and rejected. Wildman holds, at para. 59, that where, as here, a support claim is a principal issue at a multi-issue matrimonial trial, the allocation of costs as between support and non-support issues may be both impractical and inappropriate. Although a trial judge, in the exercise of his or her discretion, may identify those costs of a proceeding that were directly incurred in relation to a contested support claim, so as to designate those costs as enforceable by the FRO, this is not a necessary undertaking. As this court noted in Sordi, at para. 25, trial courts have considerable discretion concerning requests that legal costs in a multi-issue matrimonial proceeding be designated as support for the purpose of FRO enforcement. Absent legal error, designations of this kind attract considerable deference from this court.
[38] In Wildman v Wildman 2006 CanLII 33540 (ON CA), 82 O.R(3D) 401, Macpherson, J.A. reviewed the discretion afforded to trial judges in multi-issue proceedings to order that costs are enforced as support at paras 54 to 59:
- Section 1(1)(g) of the Family Responsibility and Support Enforcement Act, 1996, S.O. 1996, c. 31 (the "FRSEA") provides:
1(1) In this Act, . . . . .
"support order" means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for, [page 414] . . . . .
(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance . . . .
The advantages of an order under this provision are that the costs award is enforceable by the Family Responsibility Office and the order is not discharged in a bankruptcy by virtue of s. 178(1)(c) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.
The validity of an order making a costs award at trial enforceable by the Family Responsibility Office was specifically affirmed by this court in A.M.D. v. A.J.P., 2003 CanLII 48241 (ON CA), [2003] O.J. No. 3, 35 R.F.L. (5th) 323 (C.A.), at para. 16. Indeed, in that case the court went even further and ordered, at para. 17, that costs of the appeal also constitute a support order and "are fully enforceable by the Family Responsibility Office".
I note that both s. 1(1)(g) of the FRSEA and the wording of the court's endorsement in A.M.D. v. A.J.P. use the terminology of "enforceable", not "payable and enforceable" as in the order in this case. The respondent concedes that nothing is added by the words "payable and". For the sake of accuracy, they should be deleted from para. 14 of the order.
The appellant makes a second argument on this issue. He contends that the trial and the final order dealt with several issues other than support, including custody, access, property, debts, preservation, [and] freezing and charging orders. The appellant submits that only those costs relating to support should be enforceable pursuant to s. 1(1)(g) of the FRSEA.
I disagree. The principal issue at trial was spousal and child support. In any event, I agree with Thomson J.'s observation in Re Stancati v. Stancati (1984), 1984 CanLII 1775 (ON CJ), 49 O.R. (2d) 284, [1984] O.J. No. 3430 (Prov. Ct.) at p. 287 O.R.: "It seems to me to be both impractical and inappropriate to suggest that this court should attempt to dissect cost awards in order to determine which part of the award relates to the support aspect of the proceedings." I also note that A.M.D. v. A.J.P. was a multi-issue matrimonial case in which this court upheld the trial judge's order that all costs be enforceable by the Family Responsibility Office.
[39] I have imputed an income of $30,000 to the respondent and am aware that he has no assets. I have also taken into consideration the fact that he will be having the children every second weekend and one overnight every second week as well as various holidays.
Disposition
[40] I find that the applicant tried on numerous occasions to avoid having to proceed to a trial. On the other hand, the respondent did not make any offers after June 2015, failed to accept reasonable offers to settle, failed to provide financial disclosure ordered on two occasions and advanced a theory of his case that he should have sole custody of the two boys and that the applicant have weekend access. His theory was rejected.
[41] Considering all the factors set out herein, I find it fair, reasonable and proportional that the respondent pay to the applicant her costs fixed in the amount of $50,000 inclusive of HST and disbursements.
[42] I order that the entire cost award be enforceable by the Family Responsibility Office as child support pursuant to section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 S.O. 1996.
Mr. Justice Mark Shelston
Released: January 2, 2019
COURT FILE NO.: FC-14-2239
DATE: 2019/01/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karissa Grenier
Applicant
– and –
Marc Imbeault
Respondent
REASONS FOR JUDGMENT
Shelston J.
Released: January 2, 2019