Court File and Parties

COURT FILE NO.: D15148-16 DATE: 2019-09-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HOLLY LYNN PEARCE, Applicant AND: ANTHONY SHYAM KISSOON, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: William H. Abbott, for the Applicant Robert W. Sager, for the Respondent

COSTS ENDORSEMENT

[1] The parties have failed to settle the issue of costs and have each delivered written submissions on costs.

Positions of the Parties

[2] The applicant seeks costs of her motion on a substantial indemnity basis in the total amount of $8,138.42, comprised of fees in the sum of $5,964.80, HST on fees in the sum of $775.42, disbursements in the sum of $612.56, HST on disbursements in the sum of $66.37 and an additional $750.00 for the cost of preparing her costs submissions.

[3] The applicant argues that, as the successful party, she is presumptively entitled to costs pursuant to rule 24 of the Family Law Rules. The applicant submits that she met her Offer to Settle dated April 23, 2019 and that the respondent submitted no offer to settle the motion, demonstrating a failure to act reasonably.

[4] The applicant seeks an Order that any cost award be enforceable as child support by the Family Responsibility Office, pointing out that the respondent has three outstanding costs awards against him.

[5] The respondent acknowledges that the applicant was the successful party on the motion and is entitled to an award of costs. However, he submits that the quantum of the costs claimed by the applicant is excessive. He submits that the applicant’s Offer to Settle, by not specifying a monetary figure required to be paid by the respondent in order to lift a stay of his Motion to Change, but rather requiring that he be “in complete compliance” with my Order dated July 31, 2017, did not demonstrate sufficient clarity to support an award of substantial indemnity costs. Moreover, he submits that both the hourly rates for the three counsel and the clerk involved in the file and the number of hours were excessive given the nature of the motion. He also disputes the claims for travel costs and unparticularized disbursements.

[6] The respondent submits that he is not employed and that a substantial costs award, would impact his ability to pay child support.

Guiding Principles

[7] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors, including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) 2003 CanLII 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[8] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that, unless the court orders otherwise, a party who makes an offer at least one day before the motion, and obtains an order as favorable as, or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery of costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[9] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of subrule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[10] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[11] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[12] In my view, the applicant’s Offer to Settle did lack clarity for the reasons cited by the respondent. I would therefore not apply sub-rule 18(14) to order full recovery costs from and after the date of the Offer. However, I do take into account the fact that the applicant acted reasonably in submitting an offer to settle, whereas the respondent did not.

[13] I accept the proposition derived from Serra v. Serra, 2009 ONCA 395 (C.A.) that the concept of the two traditional scales of costs is no longer the way to quantify costs and that costs awards, at the end of the day, should reflect what the court views as a fair and reasonable amount that the unsuccessful party should pay.

[14] As indicated above, the reasonable expectations of the unsuccessful party of what he or she would have to pay is a governing consideration, as is the principle of proportionality.

[15] The court is hampered in gauging the respondent’s reasonable expectations by his failure to submit a Costs Outline.

[16] I am prepared to accept that the respondent does have an inability to pay a substantial costs award and that such an award would likely impact his ability to pay child support.

[17] Applying the principle of proportionality and what should have been the reasonable expectation of the respondent to be required to pay if unsuccessful on the motion, I find the sum of $4,500.00, inclusive of fees, disbursements and HST to be a fair and reasonable amount for the respondent to pay for costs of the motion.

[18] The respondent’s Motion to Change, in respect of which the applicant was successful in obtaining a stay, did not exclusively relate to child support. Indeed, I would characterize access as a more predominant issue on the respondent’s Motion to Change than child support. Accordingly, I do not find it appropriate to treat the award of costs as relating to child support for the purpose of enforcement.

Disposition

[19] It is therefore ordered that the respondent pay to the applicant the sum of $4,500.00 in respect of costs of the applicant’s motion within 30 days hereof.

D.A. Broad

Date: September 5, 2019