Court File and Parties
Court File No.: D17824/01 Date: 2020/03/03
Ontario Superior Court of Justice
Between:
Calvin James William Graham Self-represented Applicant
- and -
Brenda Anne Graham Angelo P. Fazari, for the Respondent Respondent
Costs Endorsement
The Honourable Justice M. Kril
[1] On January 6, 2020 I released my decision in this motion to change. I invited counsel to make written submissions in the event that they were unable to agree on the issue of costs. I have now received written submissions from both counsel.
[2] The Applicant’s submission is that there should be no order for costs, or in the alternative that costs of $500.00 be awarded in the Respondent’s favour. The Respondent’s submission is that costs should be awarded to her on a substantial indemnity basis in the amount of $22,781.37.
[3] Modern costs rules are designed to foster four fundamental purposes:
- To partially indemnify successful litigants;
- To encourage settlement;
- To discourage and sanction inappropriate behaviour by litigants and;
- To ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (see Mattina v. Mattina, 2018 ONCA 867).
[4] Rule 24 of the Family Law Rules provides a framework for awarding costs in family law matters. The starting point for the analysis is the presumption found in Rule 24(1) that the successful party is entitled to the costs of a case. In determining which party has been successful, the court is to consider any offers made by the parties as well as the position each party took at trial.
[5] The Respondent took the position at trial that she was entitled to an order for spousal support. The Applicant took the position that the Respondent had previously released her claim to spousal support. It was the Respondent’s position that in any event, he had no ability to pay support and that income should be imputed to the Respondent. I found that the Respondent had not released her claim to spousal support and ordered that support of $1,000.00 per month be paid. In arriving at that quantum, I imputed income to the Applicant but not to the Respondent.
[6] The Applicant submitted that success was divided. He argued that the Respondent had sought that support be increased retroactively as well as on a go forward basis. Increased support was not ordered to be paid retroactively. However, support in accordance with the amount garnisheed by the Family Responsibility Office in accordance with an earlier interim interim order was ordered. As such, the Applicant was not successful on the alternative positions he put forward at trial, namely that no support was payable from the time of the alleged release or that he had no ability to pay and that the Respondent had the ability to earn income.
[7] The cost consequences of making an offer that is as favourable or more favourable than the result at trial are provided for in Rule 18(14) of the Family Law Rules. In this case, both parties made written Offers to Settle. Neither offer proposed terms that were as favourable or more favourable than the result at trial. However, even if Rule 18(14) is not triggered, the court may take any offer to settle into account in exercising its discretion to make a costs award (see Rule 18(16)).
[8] I am not required to examine each term of each offer and compare it to the order with microscopic precision. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (see Wilson v. Kovalex, 2016 ONSC 163).
[9] The parties’ offers differed in both quantum and duration. The Applicant’s offer proposed continued support of $400.00 per month payable until the Respondent turned 65 years of age. The Respondent proposed go forward support of $900.00 per month payable indefinitely as well as a lump sum for retroactive support of $13,000.00. The court ordered indefinite go-forward support of $1,000.00 per month and a small adjustment to the retroactive support in addition to the amount already garnisheed. On balance, I find that the Respondent’s offer was more aligned with the order made by the court. In particular, the dominant and threshold issue at the trial was the Applicant’s position that the Respondent had, in fact, released her claim to support previously. As such, I find that the Respondent was the successful party at trial and that she is presumed to be entitled to an award of costs.
[10] Costs are discretionary. Rule 24(12) of the Family Law Rules sets out the appropriate considerations in fixing the quantum of costs. It reads as follows:
24 (12) In setting the amount of costs, the court shall consider,
(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.
[11] In Beaver v. Hill, 2018 ONCA 840 the Court of Appeal confirmed that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.
[12] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. It reads as follows:
24(5) In deciding whether a party has behaved reasonable 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.
[13] The Applicant did make an offer to settle. He acknowledged his obligation to pay support in the offer. However, this was not his position at trial. The quantum and time limited nature of the offer made by the Applicant were not in keeping with the case law and as such, not reasonable. The Respondent’s offer, if accepted by the Applicant, would have given him a more favourable result than proceeding to trial.
[14] The Applicant represented himself at trial. This resulted in increased costs for the Respondent as the Applicant chose to give evidence and cross examine on matters that were not relevant to the issues at hand. Repeated efforts on the part of the court to assist the Applicant were of no effect. Overall, in light of the length of their marriage and the strong compensatory and needs based claims by the Respondent, the Applicant’s position at trial that support was not payable was unreasonable.
[15] On the other hand, the Respondent saved valuable court time and resources by acknowledging at the outset of trial that she was not seeking support for the period prior to the date of most recent notice given to the Applicant by her. This was a reasonable concession on her part.
[16] Rule 24(12)(b) requires that the court consider any other relevant factor. I have given consideration to the Applicant’s current financial circumstances as I did in my original decision. However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs (see Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.)).
[17] I have reviewed the Bill of Costs provided by the Respondent. The calculation of time includes that spent in preparation and attendance on settlement conference. The issue of costs was expressly reserved by the first settlement conference judge to the judge hearing the second settlement conference. No costs were awarded or reserved at the conclusion of the second settlement conference.
[18] Rule 17(18.1) states that I am not prevented from awarding costs in relation to the conference at a later stage in the case if costs are not ordered. However, I adopt the reasoning of the court in Cameron v. Cameron, 2018 ONSC 6823 where the court interpreted the changes to the costs rules regarding prior steps in a case as creating a rebuttable presumption against ordering costs for these steps if they were not addressed or reserved by the judge hearing the step. As such, I decline to order costs of the prior steps.
[19] The substantial indemnity rate proposed by the Respondent appears to reflect 90% of the full indemnity rate. The Court of Appeal has recently confirmed that there is no presumption in favour of a close to full recovery rate in family cases (see Beaver v. Hill, supra).
[20] In considering the above circumstances and the principles of reasonableness and proportionately, I order that the Applicant shall pay costs to the Respondent in the amount of $15,000.00 inclusive of disbursements and HST.
[21] This matter dealt with the issue of spousal support only and the fees incurred are an incident of support. As such, this costs award is payable as support and enforceable as support by the Family Responsibility Office.