COURT FILE NO.: FS-16-85855
DATE: 2019-02-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: F.M., Applicant
- and -
T.M. et al, Respondents
BEFORE: Lemon J.
COUNSEL: Kristy A. Maurina, Counsel for the Applicant
T.M. In Person
A.M. In Person
No one appearing for Respondents G.T. and Paul Pellman
HEARD: In Writing
COSTS ENDORSEMENT
The Issue
[1] On November 29, 2018, I heard F.M.’s motion for child and spousal support. I shall refer to her as “the wife”. By endorsement January 7, 2019, I ordered T.M. to pay $2,300.00 per month in spousal support and $459.00 per month in child support commencing October 1, 2018. I shall refer to him as “the husband.” A.M., the father’s brother, also made submissions on the motion.
[2] I have now received costs submissions from all parties. The wife seeks costs fixed in the amount of $11,500.00 against the husband and a further $800.00 against his brother.
[3] In response, the husband seeks costs of $3,500.00 as a result of a dispute with respect to adjournment dates.
[4] The husband’s brother denies that he should pay costs of $800.00 and submits that there should be no costs to any party.
Authorities
[5] In Mattina v. Mattina, 2018 ONCA 867, our Court of Appeal recently said:
[9] Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court. Rule 24 of the Family Law Rules sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice. Although the Family Law Rules do not expressly govern costs awards in the Court of Appeal, they have been used to guide this court’s analysis on costs in family law disputes.
[10] This court has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly, and Rule 24(12), which sets out factors relevant to setting the amount of costs, specifically emphasizes “reasonableness and proportionality” in any costs award.
[11] The Family Law Rules are a marked departure from some aspects of the Rules of Civil Procedure. As such, case law pertaining to costs decided under the Rules of Civil Procedure should be approached with some caution.
[12] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal and the presumption that a successful party is entitled to costs applies equally to custody and access cases.
[13] Consideration of success is the starting point in determining costs. This presumption does not, however, require that the successful party always be entitled to costs. An award of costs is subject to: the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party.
[14] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
(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.
[15] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).
[16] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[17] Rule 24(5) provides guidance on how to evaluate reasonableness:
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.
[18] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. [Citations removed]
[6] Just because an award of costs may be on a full indemnity basis does not mean that the successful party is entitled to whatever costs were incurred. The court assessing costs is still required to consider all of the factors in such an award. United Soils Management Ltd. v. Mohammed, 2019 ONCA 128.
Analysis
[7] The wife was successful and is therefore presumed to be entitled to her costs. I agree with the husband and his brother that she was not as successful as her submissions or her offer to settle, but she obtained an order much higher than their submission. They submitted that she was not entitled to any support.
[8] This was an important issue to the wife as the husband had not been paying any spousal or child support. While he had been paying for other items for which he seeks credit in the future, there is no dispute that he had not been paying those amounts of support. The wife was reasonable in bringing this motion.
[9] My ruling hinged on imputing income to the husband. I relied on evidence that came about only as a result of his own productions. When that evidence was pointed out to him within the motion, only then did he admit that there should be additions to his income. That delay in disclosure and admission is unreasonable.
[10] The husband submits that he made an offer that was “very close” to the order. He says that the wife was unreasonable in failing to accept his offer. That offer was made the day before the motion. It proposed to pay the wife $1,000.00 per month, on a time limited basis, commencing January 1, 2019. It was silent with respect to child support. I ordered that the husband to pay $2,300.00 per month in spousal support and $459.00 in child support, commencing October 1, 2018.
[11] While it is true that my order of spousal support is taxable to the wife, and the husband’s proposal was on a net basis, my order of $2,759.00 per month, commencing October 1, 2018, is not “very close” to $1,000.00 per month, commencing January 1, 2019. The wife was reasonable in not accepting that proposal.
[12] The husband points out that the motion was initially set for a date that his counsel was not available. The correspondence to that effect is somewhat equivocal and I cannot find that the wife’s counsel purposely fixed that date. In any event, the motion was adjourned. The urgency for the motion was caused by the husband’s failure to pay as he is required. While counsel should always attempt to find a mutually convenient date, sometimes circumstances caused by the parties will make that impossible. I do not find that the wife’s counsel was unreasonable in picking the date and then dealing with the necessary terms of the adjournment. I do not find that the husband is entitled to costs on that issue.
[13] Although neither the husband nor his brother made submissions with respect to the bill of costs, I have significant concerns about the amount as requested. The wife’s counsel has 11 years of experience, and yet incurred what appears to be just over 10 hours to prepare the affidavit in support of the motion and a further 10 hours replying to the husband’s materials. The materials dealt with a number of issues that were not argued before me. In my endorsement, I described the materials as “voluminous and, to a large extent, irrelevant.”
[14] My costs order should not allow her to receive costs for unargued issues but, so too, it should not prevent her from seeking costs for that effort if she is later successful on those other issues using these materials. This cost order only relates to the issues of child and spousal support as argued before me.
[15] Taking all of those factors and the principles of Mattina into consideration, I find that the husband shall pay costs fixed in the amount of $7,500.00.
[16] With respect to the husband’s brother’s costs, I agree that he has a right to respond to the motion as he was named in the proceedings. However I found that “since A.M. has no obligation to pay his brother’s family law support obligations, I do not find that he has any real interest in this motion other than to support his brother and denigrate his brother’s ex-wife.” Accordingly, A.M.’s involvement was of no benefit to any party and only increased the costs somewhat to all parties. I fix that amount at $500.00 payable by A.M. to the wife.
Justice G.D. Lemon
Date: February 25, 2019
COURT FILE NO.: FS-16-85855
DATE: 2019-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
F.M.
Applicant
– and –
T.M. et al
Respondents
COSTS ENDORSEMENT
Lemon, J
Released: February 25, 2019