Court File and Parties

Court File No.: FC-17-2172 Date: 2020-03-09 Superior Court of Justice – Family Court

Re: Melanie Andree Proulx, Applicant And: Marc Andre Guy, Respondent

Before: Justice A. Doyle

Counsel: Gary Blaney, Counsel, for the Applicant T. Teshebaeva, Counsel, for the Respondent

Heard: In Writing

Costs Endorsement

[1] On December 16, 2019, after a 2-day trial, the Court granted, among other things, the following:

• The Respondent Husband to pay the amount of $4,319 in retroactive child support;
• Commencing January 1, 2020 and on the first day of each month thereafter, the Husband will pay to the Applicant Wife spousal support in the amount of $1,100 per month until December 31, 2022 at which time spousal support will terminate.
• Both parties will continue to maintain the children as beneficiaries of their medical/dental coverage available through employment. Each party will provide full disclosure of claims submitted on behalf of the children under their policies.
• The Husband shall immediately irrevocably designate the Wife as the beneficiary of his life insurance policy with a face amount of $300,000 to secure his spousal and child support obligations. He shall forthwith provide documentary evidence that he has done so including proof of the irrevocable designation being received by the insurance company. He shall provide annual disclosure that the policy is in good standing.
• The Wife shall immediately irrevocably designate the Husband as the beneficiary of her life insurance policy with a face amount of $55,000 to secure child support in the event of her death. She shall forthwith provide documentary evidence that she has done so including proof of the irrevocable designation being received by the insurance company. She shall provide annual disclosure that the policy is in good standing.
• When the spousal support obligation ends, the husband’s obligation to maintain security for spousal support ends at that time and the quantum of the face amount of the life insurance policy will be reviewed. Also, at that time, the quantum of security for child support required by both parties will also be reviewed.

[2] If the parties were unable to agree on the issue of costs, they were to provide written submissions.

[3] After considering the parties’ submissions, Bill of Costs, offers to settle and the Family Law Rules, O. Reg. 114/99 (the “FLRs”), this Court orders that the Wife pay to the Husband costs in the amount of $2,500.

Wife’s Position

[4] Both parties exchanged offers to settle but neither party’s offer triggered the application of r. 18, and both parties achieved some success.

[5] The Wife submits that she received a spousal support award significantly greater than offered, was successful in the retroactive child support issue and obtained an order requiring the husband to file his irrevocable designation with the insurance company.

[6] The Bill of Costs filed does not indicate the total amount being claimed nor the hourly rate of her counsel.

Husband’s Position

[7] The Husband is requesting costs in the amount of $15,030.04 (inclusive of HST and disbursements) which represents full indemnification for costs subsequent to his offer to settle dated May 10, 2019.

[8] He submits that he was the successful party at trial as he obtained the same or more favourable outcome for all major issues except the quantum of spousal support.

[9] He was successful in obtaining a termination date for spousal support and the Court did not order retroactive spousal support. The Wife offered spousal support on an indefinite basis. The Court also found that the spousal support claim had a small component of a compensatory element.

[10] He had offered $4,720 in retroactive child support and the Court ordered $4,319. The Wife’s offer to settle dated March 21, 2019 included that the Husband pay a retroactive child support amount of $5,000.

[11] Finally, he offered life insurance with a face amount of $300,000 without any opportunity for a reduction whereas the Court ordered a face amount of life insurance of $300,000 with an opportunity for a reduction in the future.

[12] With respect to the Court Order requiring that his life insurance designation be filed with the Insurance company, he did not act unreasonably as he did comply with his employer’s requirements.

Legal principles

[13] In Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal confirmed the purposes of costs: (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 under r. 2(2) of the FLRs.

[14] Subrule 24(1) of the FLRs creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.). 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. Lawson v. Lawson, [2008] O.J. No. 1978 (S.C.).

[15] Divided success does not equate with equal success. It requires a comparative analysis. Most family cases have multiple issues. They are not equally important, time-consuming or expensive to determine. Jackson v. Mayerle, 2016 ONSC 1556, 130 O.R. (3d) 683, at para. 66.

[16] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519.

[17] In Izyuk v. Bilusov, 2011 ONSC 7476, Justice Pazaratz, reiterates the principle that the ability to pay is relevant to the issue of quantum of costs but not to another party’s entitlement to costs. At para. 51, he states that “A party’s limited finances may not be used to shield liability, particularly where that party has acted unreasonably”.

Analysis

[18] The FLRs provide that there is a presumption that the successful party is entitled to costs.

[19] A review of the offers to settle is as follows:

• The Wife’s offer to settle dated March 14, 2019 provided for the following:
  • Spousal support payable by the Husband in the amount of $900 per month;
  • Child support in the amount of $1,005 per month;
  • Annual adjustment of child support;
  • Designation of the wife as beneficiary of his life insurance policy with a requirement that the husband file it with the insurer;
  • Other clauses dealing with extended health plan and insurance policy;
  • $4,500 retroactive spousal support; and
  • $5,000 in retroactive child support.

[20] Her partial offer to settle dated March 21, 2019 offered the following: retroactive child support in the amount of $5,000.

[21] The Husband’s offer to settle of August 1, 2018 offered the following:

• He would pay the retroactive child support for November and December 2016 and $644 per month of spousal support decreasing over time and ending on June 30, 2021;

[22] The Husband’s offer to settle of May 10, 2019 offered the following:

• $1,060 per month as child support;
• Annual adjustment of child support;
• $4,720 for child support arrears;
• Sharing of s. 7 expenses;
• $644 per month as spousal support until June 30, 2023; and
• No retroactive spousal support.

[23] The Court finds that no offer to settle satisfies the requirements of r. 18 of the FLRs.

[24] The Husband’s last offer to settle dated May 10, 2019 was the closest to the terms of the final Order except as it relates to quantum of spousal support. In addition, some of the Court time was used to deal with the requirement that he file his insurance designation with the insurer as required by the legislation. In addition, time was spent at trial dealing as to whether spousal support was based on need and/or compensatory basis.

[25] Therefore, I find that the Husband was the more successful party on the important issues of: duration of spousal support, retroactive spousal support and the quantum of child support arrears. However, I note that the Wife did offer a stand-alone offer to settle on the issue of retroactive child support.

[26] When determining the quantum of costs, r. 24(11) requires the Court to consider the following factors:

• The reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
• Each party’s behaviour:

[27] Neither party was unreasonable. The Court does note that the Husband’s failure to file the life insurance designation with his insurer took up court time. The legislation is very clear that this was necessary to ensure that the Wife would receive the insurance proceeds in the event of the Husband’s demise.

• Time spent by each party;

[28] I have reviewed the Bill of Costs filed by the father’s counsel and I note the following:

• Any legal fees, including the number of lawyers and their rates;

[29] The Husband’s lawyer was called to the bar in 2015 and her hourly rate of $215 per hour is reasonable.

• Any other expenses properly paid or payable;

[30] The Bill of Costs states that disbursements including HST total $228.92 which is reasonable.

• Any other relevant matter.

[31] This is not a case where the Wife has behaved in such a manner that requires the court to impose full recovery of costs so that she is punished. Her position at trial was not unreasonable.

[32] Based on the above, notably the divided success on the issues, this is case where the Husband who had more success than the Wife should be awarded some costs.

[33] The Court finds that a reasonable and fair amount, taking into consideration the above, is $2,500.

[34] Accordingly, the Court orders the Wife to pay to the Husband the amount of $2,500 in costs (inclusive of HST).

Justice A. Doyle Date: March 9, 2020