Court File and Parties
COURT FILE NO.: 399/17 DATE: 2019-10-16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICIA MORDEN Applicant
- and -
BRIAN KELLY Respondent
Counsel: Ben Fortino, Counsel for the Mother/ Responding Party on Motion to Change Stuart Law, Counsel for the Father/ Moving Party on Motion to Change
HEARD: In Writing
The Honourable Madam Justice Catrina D. Braid
COSTS ENDORSEMENT
I. OVERVIEW
[1] This ruling addresses the quantum of costs payable following a Motion to Change, which dealt with the issue of support for an adult disabled child. The trial judgment is reported at Morden v. Kelly, 2019 ONSC 4620. The facts are set out in detail in that decision and will not be repeated here. At trial, the parties agreed that their son, Conor Kelly, remains entitled to support and that there had been a material change in circumstances. They did not agree on the quantum or method of calculating support.
[2] After trial, I determined that there should be no order for retroactive child support. On an ongoing basis, the cost of Conor’s ongoing care far exceeds the available government funding. I determined that the financial shortfall should be shared by the parents in proportion to their income, which determined the amount of child support payable.
[3] I have now received written costs submissions. For the reasons that follow, I award $25,000 in costs to the mother, all inclusive.
II. ANALYSIS
A. Positions of the Parties Regarding Costs
[4] The mother submits that the father acted unreasonably by failing to provide budgetary information until mid-trial; and by advancing numerous claims that were withdrawn or dismissed. She argues that the father should pay 100% of her costs in the amount of $73,127.51, inclusive of HST and disbursements.
[5] The father argues that there should be no costs order. He submits that he was forced to bring the Motion to Change to obtain child support for Conor, and that his ability to pay is limited. Although the father does not dispute the reasonableness of the mother’s quantum of costs generally, he submits that any costs order should relate only to the trial and not to other steps in the proceeding.
B. General Legal Principles
[6] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 grants broad discretion to the court regarding costs. The court may determine by whom and to what extent costs shall be paid: see M.(C.A.) v. M.(D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.).
[7] Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended, sets out principles to guide the court regarding costs. Two important principles in exercising discretion are reasonableness and proportionality: see Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.
[8] 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: see: Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625.
[9] I have considered the principles set out above. In my view, the following are the most significant factors in this particular case:
i. Offers to Settle
[10] The Family Law Rules set out cost consequences of failing to accept an offer. The court has discretion to consider any written offer to settle, the date it was made and its terms, when exercising its discretion over costs: see Rules 18(14) and (16).
[11] In the case before the court, several Rule 18 offers were exchanged. I have not been provided with other offers that were not Rule 18 offers but that could still be considered under Rule 24(12). Both parties exchanged offers to settle, but the order made after trial was not as favourable as or more favourable than any of the offers. There were no offers to settle that would entitle a party to full recovery costs.
ii. Success
[12] Subrule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. 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, 2008 23496 (ON SC), [2008] O.J. No. 1978 (S.C.). The position each party took at trial should also be examined.
[13] Once the mother received a proper budget from the father during trial, she provided a draft order that included terms requiring her to pay child support in the amount of $1,617.52/month; and dismissal of the claim for retroactive child support. The court’s final order essentially mirrored this draft order. The mother was successful at trial.
iii. Reasonableness of the Parties’ Conduct
[14] Rule 24 directs the court to consider the reasonableness of the parties’ behaviour, and whether this should have an impact on costs. Liability for costs must be assessed taking into consideration all the circumstances and dynamics of the case. In deciding this issue, the overall reasonableness of each party’s conduct and the positions which they have taken in the litigation is an important consideration.
[15] In this case, I find that the father did not behave reasonably, for the following reasons:
a) At trial, the court found that the father did not provide proper budgetary information until mid-trial. Since the mother did not have a budget (including a list of expenses and government funding) from the father, it was impossible for her to accurately assess what her child support obligations were. This impeded meaningful settlement negotiations.
b) The father’s claims were somewhat of a moving target. At various points leading up to and during trial, he made numerous claims that were either withdrawn or dismissed, including claims for sole custody; spousal support; retroactive child and spousal support; punitive and exemplary damages; and costs owed to a former lawyer.
[16] To his credit, the father served four different offers to settle in the months prior to and during trial; and he attended a mid-trial settlement conference before another judge. I accept that he made some effort to resolve the litigation.
iv. Ability to Pay and Impact on Conor
[17] Although they are not specified in Rule 24 as factors in determining costs, the financial means of the parties, their ability to pay a costs order, and the effect of any costs ruling on the parties and the children are relevant considerations in reaching a determination on the issue of costs: see Fyfe v. Jouppien, 2012 ONSC 97, [2012] O.J. No. 18.
[18] I have considered the father’s ability to pay the costs order. A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be considered when determining the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune: see Snih v. Snih, 2007 20774 (ON SC), [2007] O.J. No. 2198 (Ont. SCJ).
[19] The father’s ability to pay is an important consideration in determining an amount of costs that is fair and just in this case. At trial, the court found that the father struggled greatly to meet Conor’s needs. The father’s employment prospects were negatively impacted by his obligations to care for Conor. In addition, he paid a personal cost because he did not have the money to pay for respite care.
[20] I do not wish any costs order to limit the father’s ability to care for Conor. At the same time, the father should be held accountable for the positions he took in the litigation.
v. Quantum
[21] In determining the appropriate quantum of costs, the court must consider the reasonable expectations of the parties; the complexity and importance of the proceeding; and the conduct of the parties in litigation. I have considered these factors: see Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905.
[22] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.
[23] The trial lasted six days. The legal issue of child support for an adult disabled child was complex. The parties provided caselaw and written submissions, in addition to making oral submissions.
[24] I have reviewed the detailed Bill of Costs of the mother, the written submissions of the parties and the offers to settle. Taking into account all the factors that I have set out above, I find that a fair and reasonable award of costs is $25,000, inclusive of HST and disbursements.
[25] The mother requests an order that this costs judgment be set off against ongoing child support. It should only be truly exceptional circumstances that would lead the court to order set-off of costs against child support: Walsh v. Walsh, 2008 586 (ON SC), [2008] O.J. No. 98 (S.C.); aff’d 2007 ONCA 218.
[26] When a request for set-off is made, the court should consider whether that order will have an adverse impact on the child. In this case, an order that costs be set off against child support would have a negative impact on Conor. I therefore decline to make such an order.
III. CONCLUSION
[27] This court orders that the respondent father shall pay costs to the applicant mother in the amount of $25,000, inclusive of taxes and disbursements.
Braid J.
Released: October 16, 2019
COURT FILE NO.: 399/17 DATE: 2019-10-16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
PATRICIA MORDEN
- and -
BRIAN KELLY
Respondent
COSTS ENDORSEMENT
CDB
Released: October 16, 2019