COURT FILE NO.: FS-06-58306-00
DATE: 2019 10 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HANG SOON KIM
Jerald J.D. MacKenzie, for the Applicant
Applicant
- and -
DU-WON KIM
Martin C. Schulz, for the Respondent
Respondent
Amended COSTS ENDORSEMENT
Fowler Byrne J.
[1] This Endorsement follows the release of my Decision in this matter on August 7, 2019.
[2] The Respondent Father, the Moving Party on the Motion to Change, Mr. Kim, brought a motion seeking to terminate his child support obligations pursuant to the order of Snowie J. Mr. Kim requested that support be terminated as of May 1, 2012, the date on which the only child of the marriage, Tara, completed her undergraduate degree. The Applicant Mother, responding to the Motion to Change, argued that the proper termination date was October 1, 2018, the date on which Tara finished her latest programme of study, in which she obtained a certificate in alternative dispute resolution.
[3] After hearing arguments, it was determined that Mr. Kim’s child support obligations should terminate effective May 1, 2016, when Tara completed her master’s degree.
[4] Mr. Kim claims he was successful on this motion, and seeks his full indemnity costs in the sum of $7,006. Ms. Kim claims she was more successful than Mr. Kim, and seeks her full indemnity costs in the sum of $4,902.72.
Law
[5] The award of costs is within the discretion of the court: s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[6] The modern costs rules are designed to foster three fundamental purposes: “(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants”: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22, as cited in Serra v. Serra, 2009 ONCA 395, at para. 8.
[7] The Court of Appeal for Ontario has stated that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, at para. 12.
[8] Rule 24(1) of the Family Law Rules, O. Reg. 114/99, states that a successful party is presumptively entitled to their costs. Rule 24(12) outlines the factors that the court must consider in relation to the importance or complexity of the issues, such as: the reasonableness or unreasonableness of the party’s behaviour; the rates charged by lawyers; the time spent by each party; proper expenses incurred; and any other relevant matter. The exchange of offers to settle could be regarded as an indication of a party’s reasonableness or could be another relevant factor.
[9] The Family Law Rules outline certain situations in which an award of full indemnity costs is appropriate. For example, consider r. 18(14), where a party makes an offer to settle, which is not accepted, that would have been better for the responding party than the order they obtained at trial. In that scenario, the offering party should have their full indemnity costs from the date the offer was served.
Analysis
[10] Given that Ms. Kim would not agree to a termination date prior to October 1, 2018, Mr. Kim was forced to bring this motion. He was successful in terminating his support earlier than what Ms. Kim would agree to. Accordingly, it is appropriate that he be awarded his costs. Although he did not receive an order for an earlier termination date, I do not find that my decision constitutes a divided result. He sought an earlier termination date, and an earlier one was ordered.
[11] Counsel for Mr. Kim’s costs outline was not helpful in that it did not specify the time spent on the matter. He claims his effective hourly rate was lower than $300 to $350 per hour, but that cannot be verified from the costs outline. Counsel for Ms. Kim has claimed that he was required to spend 11.5 hours on this matter, at a rate of $300 per hour. His full indemnity costs are $4,902.72, which appears reasonable given the work completed and the seniority of counsel.
[12] Both parties served offers to settle. Mr. Kim offered a small compromise by agreeing to continue to pay child support for three more months than what he sought at the motion. Ms. Kim’s offer provided for a greater compromise. She offered to end child support as of November 1, 2017, which is eleven months earlier than the position she advanced on the motion. Neither party exceeded their offer. Accordingly, neither party may seek full indemnity costs as a result of their offers to settle. The offer itself though, and the degree of compromise, is a factor I take into consideration.
[13] It cannot be said that either party was more unreasonable than the other. Both their positions co-related to some stage in Tara’s education.
[14] Mr. Kim is entitled to his costs on a partial indemnity basis. Given that he did not offer much of a compromise in his offer to settle, and given that the time spent on the file was not proportionate to the single issue before me, Mr. Kim’s partial indemnity rate should be reduced slightly.
[15] Accordingly, I make the following orders:
a) The Applicant Mother, Du-Won Kim, shall pay to the Respondent Father, Hang Soon Kim, the costs of this motion, fixed in the sum of $3,000, inclusive of fees, disbursements and H.S.T.;
b) This sum shall be paid by setting off this sum against any amount Mr. Kim already owes to Ms. Kim as a result of his other support or equalization obligations.
Fowler Byrne J.
Released: October 21, 2019
COURT FILE NO.: FS-06-58306-02
DATE: 2019 10 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HANG SOON KIM
Applicant
- and -
DU-WON KIM
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: October 21, 2019