Court File and Parties
COURT FILE NO.: FS-19-95861 DATE: 2020-07-31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.G. Irene Hanna, for the Applicant Applicant
- and -
S.G. Roman Botiuk, for the Respondent Respondent
HEARD: July 30, 2020, (by video-conference) at Brampton, Ontario
Price J.
Reasons for Order
Nature of the Proceeding
1The Applicant, T.G., (“The mother”) moves for custody of/decision-making responsibility for the Child of the Marriage, L.G., a parenting schedule, spousal support, and contributions to the child’s s. 7 expenses.
2This Court granted leave to the mother to bring this motion, on an emergency basis, in its Order dated June 12, 2020, made at the Case Conference conducted by video-conference in accordance with the Family Law Rules and the Notices to the Profession for the Province of Ontario and for the Central West Region.
3The following documents were electronically filed: the temporary Order dated June 12, 2020, the mother’s Notice of Motion dated July 14, 2020, and her supporting affidavit, sworn July 13, 2020, with exhibits, the father’s Notice of Motion dated July 23, 2020, his supporting affidavit, sworn July 23, 2020, with exhibits, and his supplemental affidavit, sworn July 13, 2020 (sic), with exhibits, the father’s up-dated Financial Statement, sworn July 10, 2020, and the mother’s reply affidavit, sworn July 27, 2020, with exhibits.
4On June 12, 2020, this Court, on consent, and on a temporary and without prejudice basis, ordered the father to pay the mother child support for the support of L.G., who is 17 years old, in the amount of $591.00 per month, being the amount prescribed by the Federal Child Support Guidelines, based on the father’s annual income of $63,632.00, as reported in his Notice of Re-Assessment for 2019, and contribute 75.4% of L.G.’s special and extraordinary expenses. The percentage was based on the father’s acknowledged income, as set out above, and based on the mother’s income of $10,070.00, as appears from her Notice of Assessment for 2018.
5The said Order provided that the parties should agree on the amount of L.G.’s s. 7 expenses and, failing agreement, could apply to the court for an Order specifying them. The mother has included this relief in her current motion.
6On June 12, 2020, this Court further ordered, on consent, and on a temporary and without prejudice basis, that the father pay to the mother, beginning July 1, 2020, the amount of $563.00 per month, based on the mid-point of the spousal support range prescribed by the Spousal Support Advisory Guidelines (SSAG) and the above-mentioned income amounts.
Findings and Analysis
a. Decision-making
7Although L.G. is 17 years old, he is still a minor and adult decisions, particularly regarding his education and medical care, continue to be necessary.
8I find that the mother has been L.G.’s primary care-giver during the marriage and since the parties’ separation. On the one occasion L.G. tried living with the father, it lasted a week and ended with the father ordering L.G. to leave.
9I find that the father is unable to manage his relationship with L.G. in a manner that is in L.G.’s best interests. This finding is supported by the observations noted in the Children’s Aid Society’s reports from June 8, 2017 to May 7, 2019.
10The father argues that L.G. was regularly truant from school and rejected his rules. He argues that because L.G. voluntarily withdrew from his control, the mother should not be entitled to child support for him. I disagree.
11The comments of the CAS demonstrate that L.G.’s estrangement from his father was justified, and that his resistances to the father’s authority resulted from the father exercising his authority inappropriately and in a heavy-handed manner. The reports of CAS confirm the following:
a. The father verbally abuses L.G.; b. There is ongoing conflict between L.G. and his father; c. L.G. was worried that his father would find out that he was seeing a social worker and would refuse to allow him to continue with treatment; d. LG. sustained a concussion and his father told him to “suck it up” instead of demonstrating empathy toward his son; e. L.G.’s father called him names such as “idiot” and “piece of shit” for being sick; and f. L.G.’s father threatened to kill his son if he didn’t take his medication.
12The mother has suffered from Multiple Sclerosis since she was 24 years old. She is now 50. The mother’s condition renders her unable to live independently. She resided at Bridgeport Treatment Centre for a time, and for a month beginning January 27, 2020, she and L.G. resided with the maternal grandmother. Renovations were needed to the grandmother’s home to accommodate the mother’s condition and during the renovations, the mother has resided at Kipling Acres, a nursing home operated by the City of Toronto. L.G. has continued to reside with the maternal grandmother in Bolton, Ontario, a twenty minute drive from Kipling Acres.
13While L.G. is currently residing with his maternal grandmother, the mother continues to be the primary decision-maker for him. A capacity assessment has confirmed that the mother has mental capacity. Although she has given her mother Power of Attorney, I find that this was because the mother’s MS affects her use of her hands and because the COVID-19 pandemic and public health emergency response have resulted in restricted access to the mother at her nursing home.
14The evidence, and in particular the letter from L.G.’s school, demonstrates that the mother continues to be in frequent communication with L.G. as well as with the maternal grandmother and third-party service providers, including L.G.’s teachers and co-op mentor.
15The mother and father are incapable of communicating with each other in a civil and constructive manner. Their conflict is of such intensity as to make joint decision-making impractical.
16L.G. is thriving in the care of the mother and maternal grandmother. This is evident from his recent grades and the reports of his mentor in his co-op program. I find that his continued residence with his maternal grandmother and decision-making by his mother are in his best interests.
17L.G. has expressed his wish not to reside with his father. Having regard to the fact that L.G. is 17 years old, it is incumbent on the Court to give weight to his preferences. I agree with the mother that the father’s parenting time with L.G. can and should be at L.G.’s discretion.
18The father argues that the maternal grandmother should be required to commence her own application if she is to assist the mother in carrying out her parental responsibilities. I disagree. The mother continues to be the parental decision-maker. The maternal grandmother assists her in implementing her decisions.
19The father further argues that if L.G. resides with the maternal grandmother, he should not be required to pay child support to the mother. I disagree. In Lefebvre v. Gowan, 2014 ONSC 6221 , Justice Robert Smith stated:
9The maternal grandparents have provided assistance to their daughter by allowing the Respondent mother to reside at their residence with Taylor and by providing the funds required by the Respondent mother to pay for prescription medications, and psychological counselling for Taylor. I find that the fact that the maternal grandparents have assisted their daughter in the above manner does not remove the Applicant father’s responsibility to provide child support and contribute to special expenses for a child for whom he is in loco parentis.
[Emphasis added]
20The Ontario Court of Appeal approved Lefebvre v. Gowan in Squires v Crouch, 2016 ONCA 774 , when upholding a trial judgment that awarded child support to a mother although the maternal grandmother was paying some of the grandchildren’s s. 7 expenses.
21In Wright v. Conway, 2018 ONSC 133 , at paras. 50 to 55, Jarvis J., after reviewing the relevant authorities, concluded, “In none of the authorities referenced was a parent relieved of their child support responsibility in circumstances where the child remained a dependent and attended school but lived with another family member.”
b. Spousal Support
22The current spousal support order was made on a temporary and without prejudice basis to permit a later order to be made based on further and better evidence. The Court now has that evidence.
23The mother and father were married for 19 years. I find that the mother assumed primary care of the household and the upbringing of L.G. until the parties separated in March 2019. The mother’s efforts enabled the father to devote himself to his career and enhance his income-earning ability. I find that the mother is entitled to spousal support on a compensatory basis.
24Additionally, I find that the mother is entitled to spousal support on a non-compensatory basis. She has suffered from MS since she was 24 years old. It is not disputed, and I find as a fact, that she is unable to earn income from employment. This is evidenced by the letter from Dr. Karen Cronis, the medical director of Kipling Acres. The father is capable of contributing to the mother’s support and should do so.
25The spousal support ordered on June 12, 2020, was based on the father’s DivorceMate calculations, which treated the mother’s receipts of CPP and ODSP disability benefits as employment income for purposes of spousal support. They should not be so characterized.
26The father argues that because the mother resides in the City-operated Kipling Acres nursing home, where her needs, including room, board, and care, are met, he should only be required to pay spousal support of $496.00 per month, being the low-end of the SSAG range. I disagree.
27I adopt the reasons of Gray J. in Aujla v. Singh, 2012 ONSC 5217 . Justice Gray awarded non-compensatory spousal support of $300.00 per month to a spouse suffering from MS, whose sole source of income was CPP and Ontario Disability Benefits, and who resided in a nursing home, notwithstanding that the marriage was of short duration (5 years) and the high end of spousal support under the SSAG’s was only $208.00 per month. For the reasons expressed by Gray J., I find that the balancing of responsibility in the present case between the father as a spouse/payor, and the public for the mother’s support entitles the mother to spousal support of at least the mid-point amount prescribed by the SSAG’s.
28The mid-point spousal support amount based on the father’s acknowledged employment income and the mother’s CPP and ODSP disability benefits of $10,385.00 per year is $674.00 per month, not $563.00 per month as previously ordered. The spousal amount will therefore be varied to $674.00 per month.
c. Section 7 Expenses
29Pursuant to paragraph 14 of this Court’s Order dated June 12, 2020, the father is required to pay 75.4 % of L.G.’s s. 7 expenses. L.G.’s s. 7 expenses from May 2, 2019, to April 20, 2020, consisted of medical prescriptions of $97.61, tutoring expenses of $125.00 (3 sessions of math tutoring), and a passport expense of $160.00, for a total of $382.61, of which the father’s proportional share is $288.49.
30The ongoing amount of s. 7 expenses consist of medical prescriptions for asthma and other conditions, amounting to approximately $25.00 per month, tutoring at $50.00 per week, and a driver education course, costing $690.43, or approximately $60.00 per month. L.G. attended tutoring only three times over the past year, at a cost of $125.00. The father points out that the tutoring was obtained at a time when L.G. was not taking math and submits that his earlier grade of 31% in math reflected a lack of interest or application, rather than a lack of skill.
31L.G.’s academic performance has significantly improved since the turbulence of his parents’ separation has subsided. In the co-op program which he attended last year, in grade 11, his grades have been between 87% and 88%. He has an interest in pursuing a program in criminology or policing at a community college or police academy. His mentor has recommended that he pursue post-secondary studies, which L.G. is considering. It can reasonably be expected that because of L.G.’s past academic challenges, he will require some tutoring, the cost of which I find will likely be approximately $100.00 per month.
32For the foregoing reasons, the father shall be ordered to contribute $288.49 as his share of s. 7 expenses incurred from May 2, 2019, to April 20, 2020, and $135.00 per month, being 75.4% of the L.G.’s total s. 7 expenses of $185.00 per month ($100.00 for tutoring, $60.00 for driver education, and $25.00 for prescription medication), on the 1st of each month beginning May 1, 2020.
33If L.G. enrolls in a full-time program of post-secondary studies and the parties are unable to agree on the amount of s. 7 expenses associated with the program, the mother may move for a variation of the amount of s. 7 expenses to which the father must contribute his proportionate share. After L.G. turns 18 and is no longer enrolled in full-time studies, the father may move to vary his child support obligations.
d. Costs
34The mother has been substantially successful in her motion, and is presumptively entitled to her costs. Subrule 24(1) of the Family Law Rules, Ont. Reg. 114/99, as am., articulates the fundamental “presumption that a successful party is entitled to the costs of a motion . . .”
35In the normal course, costs are awarded on a partial indemnity scale; however, the court has the discretion to order costs to be paid on a substantial indemnity or full recovery scale in exceptional cases. [1]
Principles to be balanced
36In awarding costs, I must balance two conflicting principles, namely, to indemnify the successful litigant for her cost of asserting the best interests of the child and her right to reasonable spousal support, and to avoid making potential litigants feel unduly hesitant to assert their rights by requiring unsuccessful litigants to bear all the costs of the successful party as well as their own. [2] The ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently. [3]
Factors to be Considered
37Rule 24(11) lists the factors which the court should consider in quantifying costs:
- (11) A person setting the amount of costs shall consider, (a) the importance, complexity or difficulty of the issues; (b) the reasonableness or unreasonableness of each party’s behaviour in the case; (c) the lawyer’s rates; (d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.
Complexity and importance of the issues
38The father acknowledges that there were complex issues, arising from the fact that L.G. resides with the maternal grandmother, which he says complicated the issue of decision-making responsibility, and the fact that the mother resides in a City-operated nursing home, which he says complicated the issue of the spousal support that should be paid.
39The issues were of importance to the parties, having regard to the fact that the child’s well-being depends on an Order being made that will repose decision-making in a person who best able to exercise that responsibility in L.G.’s best interests, and the fact that the mother is disabled and requires adequate support, and the father submits that he has limited means with which to pay support.
Reasonableness of the parties’ conduct
40Rule 24(4) of the Family Law Rules explicitly recognizes the principle that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. The Rule provides:
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY (4) 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. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS (5) 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. O. Reg. 114/99, r. 24 (5).
BAD FAITH (8) 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. O. Reg. 114/99, r. 24 (8).
41The father argues that although he was unsuccessful, the positions he took were reasonable. I disagree. The father acted unreasonably in the following respects:
a. He brought a cross-motion, without leave to do so, for hearing on the day when the court had scheduled the hearing of the mother’s emergency motion, which had been restricted to 50 minutes; b. He delivered three volumes of material, containing a first affidavit, 41 pages and 260 paragraphs in length, attaching 42 exhibits (numbered exhibits 1 to 12 and lettered exhibits A to Z3), and a supplementary affidavit 21 pages and 159 paragraphs in length, attaching another 18 exhibits (lettered exhibits A to R). c. The evidence was prolix and concerned facts that, in many instances, had remote relevance to the issues, such as defence disclosure from a twelve year old charge of shoplifting four containers of cut-up fruit against the mother, ostensibly to show the impact of her MS on her judgment. d. He insisted that the mother submit to a capacity assessment, which confirmed her capacity, and then continued to argue that she is incapable of making decisions in relation to L.G., submitting that the maternal grandmother should be required to make an application on her own behalf. This was unreasonable, especially having regard to the fact that the father acknowledges that the mother is committed to L.G.’s best interests, has the assistance of her mother, and that L.G. is currently thriving with the support of both the mother and grandmother. e. He argued that the maternal grandmother should submit to a police background check even though he acknowledges that he has no concerns about her background or character; f. He argued that L.G.’s residence with the maternal grandmother should preclude the mother from receiving child support, and that the mother’s temporary residence in a nursing home while the grandmother’s home is renovated to accommodate the mother’s disability should preclude the mother from receiving spousal support, or diminish its amount. These positions were contrary to the authorities cited above, and the father offered no authorities to support his positions.
42While the father consented to a temporary and without prejudice Order for spousal support on June 12, 2020, the amount was based on what the father acknowledges was a mischaracterization of the mother’s CPP and disability benefits as employment income. The father attributes this mischaracternization of the benefits as a “clerical error”.
43It should not have been necessary for the mother to proceed to a hearing of her motion to increase her spousal support in these circumstances. Given that the parties were married for 19 years and the mother is disabled and incapable of employment, the father should have consented to increase her spousal support to at least the same mid-point of the SSAG range the parties had consented to on June 12, 2020, but based on the proper characterization of her income.
44In proceeding to a hearing, the father faced the risk that the mother’s spousal support would be increased beyond the high end of the range, as Gray J. ordered in Aujla v. Singh, above. He avoided that outcome only because the mother took a moderate position in continuing to seek a mid-point amount.
45Finally, it was unreasonable for the father not to accept the mother’s Offer to Settle. Ms. Hanna received the father’s motion material on July 23 and delivered her client’s Offer on July 27, 2020. It offered to settle the motion on terms that were the same as the outcome regarding decision-making and spousal support, but that did not include ongoing contribution to s. 7 expenses. The outcome was therefore more favourable to the mother than her Offer.
46Although the mother’s Offer was not delivered early enough to entitle her, as of right, to costs at a higher scale pursuant to the Rules, the Court may exercise its discretion to consider the Offer, which I do in this case. The timing of the Offer was reasonable, having regard to the emergency nature of the motion, the short timetable for delivery of material, and the fact that the mother’s counsel received the father’s material only four days before she delivered her Offer.
The lawyers’ rates
47The mother was represented by Irene Hanna, who was called to the Bar of Ontario in 2016. She was assisted in her preparation by a senior counsel, Salvatore Mannella, who was called to the Bar in 1982. The father was represented by Roman Botiuk, who was called to the Bar in 2001.
36The “Information for the Profession” bulletin, from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”) [4], suggests maximum hourly rates (on a partial indemnity scale) of $80.00 for law clerks, $225.00 for lawyers with less than 10 years’ experience, $300.00 for lawyers with between 10 and 20 years’ experience, and $350.00 for lawyers with 20 years experience or more. These rates should be reserved for matters of the greatest complexity.
37Pursuant to the Costs Bulletin, Ms. Hanna, who has practiced for less than 10 years, would have been entitled to claim a maximum hourly rate of $225.00 on a partial indemnity scale in 2005. Mr. Mannella could have claimed $350.00. The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate to adjust the rates suggested in the Costs Bulletin based on inflation. [5]
38Aitken J. in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041 , held that the starting point in arriving at an appropriate hourly rate when fixing costs is the Costs Bulletin, not the actual hourly rate the lawyer charges her client. The actual rate charged is irrelevant, except as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged, in keeping with the principle of indemnification. [6] The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same place.
39Although Geographic Resources was a civil action, Aitkin J.’s approach applies equally in the family law context. The court adjusts the hourly rate, based on the Costs Bulletin, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 24. If excess time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual rate that the client agreed to pay is irrelevant.
40Adjusting for inflation, the maximum partial indemnity rate that Ms. Hanna may claim is $288.77. Having regard to the fact that Ms. Hanna has practiced for 4 years, I would adjust the maximum rate downward to $250.00. Ms. Hanna’s actual rate is $350.00. Mr. Mannella, who was called to the Bar in 1982, charges an actual hourly rate of $725.00. The Costs Bulletin in 2005 recommended a maximum partial indemnity rate of $350.00 for lawyers, like Mr. Manella, who have practiced for more than 20 years. Adjusting for inflation, that rate is now $449.20.
41Ms. Hanna spent 6 hours, at a partial indemnity rate of $250.00, after delivering the mother’s Offer to Settle. The mother’s Offer, by itself, should entitle her to at least 50% higher costs for the time Ms. Hanna spent after the Offer was delivered. This would raise Ms. Hanna’s hourly rate to $375.00. Ms. Hanna’s actual rate is $325.00 per hour, which should not be exceeded by the costs awarded, even on a full indemnification basis. The amount to be added to the award, based on the Offer alone, is therefore 6 hours times $75.00, being the difference between Ms. Hanna’s partial indemnity rate of $250.00 and her actual rate of $325.00, or $450.00.
The time properly spent
42Ms. Hanna spent 19 hours in preparation and argument of the motion. She was assisted by Mr. Mannella, who spent 3.2 hours. The hearing itself took 2 hours. I find that the time spent by the mother’s lawyers was reasonable and reflected in the material filed, especially the three volumes filed by the father, and the arguments made at the hearing.
What is fair and reasonable
43I must, at this point, step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved. In making this determination, I take into account the reasonable expectation of the parties concerning the amount of costs. [7]
44In Andersen v. St. Jude Medical Inc. (2006), the Ontario Divisional Court set out several principles that must be considered when awarding costs:
- The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, (2005), 75 O.R. (3d) 638 (C.A.).
- A consideration of experience, rates charged, and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.
- The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).
- The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano v. Bank of Montreal, (1998), 41 O.R. (3d) 222 (C.A.), at p. 249.
- The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher. [8]
45In Clarington (Municipality) v. Blue Circle Canada Inc, the Court of Appeal stated:
As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.” [9]
46In Andersen v. St. Jude Medical Inc., the Divisional Court noted:
…Since [May 21, 2004], there have been three decisions of the Court of Appeal which have emphasized the importance of an additional step in the process of fixing costs, which requires the judge to step back and examine the overall award with a view to determining whether it is “fair and reasonable” for the kind of matter involved. Further, in determining what is fair and reasonable, the judge fixing costs is required to take into account the reasonable expectation of the parties concerning the quantum of costs. [10]
Proportionality
47The principle of proportionality was added to the Rules of Civil Procedure by the amendment of Rule 1.04, which I apply by analogy to the present motion as there is no equivalent provision in the Family Law Rules. Rule 1.04 directs that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Sub-Rule 1.1, which was added, provides:
Proportionality (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.
48Having regard to all of the circumstances, including the resources of the parties, their conduct, and the issues and amounts at stake in the motion, I conclude that the father should reasonably have expected that, if unsuccessful, he would have to pay the mother her costs on a full recovery basis.
49The mother calculates her costs, on a partial indemnity scale, at $5,356.34, inclusive of disbursements and H.S.T. Her costs, on a full recovery scale, were $9,599.35.
50The father calculated his costs, on a partial indemnity scale, at approximately $6,075.00 ($6,500.00, less $425.00 that was attributable to his up-dated Financial Statement and not to the motion). The actual fees and disbursements the father paid his lawyer were obviously higher.
51The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis. [11] It has a range of costs awards open to it, from nominal to just short of full recovery.
52In Sims-Howarth v Bilcliffe, (2000), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules. [12] He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v D.M.. [13]
53In Berta v. Berta, 2015 ONCA 918 , (2015), the Court of Appeal stated:
In Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 67 O.R. (3d) 181 (C.A.), at para. 40. [14]
[Emphasis added]
54Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs. In Perri v. Thind et al. (2010), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. [15] In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct. [16]
55Based on the father’s costs, the conduct of the parties, the amounts at stake, and the importance of the issues to the parties, I find that an award of costs to the mother on a full recovery basis is reasonable and proportional. Given the amount of material the father delivered, and the positions he took, he should have expected to pay the full amount of the mother’s costs, in roughly the same amount he was paying his own lawyer. I therefore am fixing the mother’s costs at $9,599.35.
Conclusion and Order
56Based on the foregoing, it is ordered that:
Decision-Making Responsibility
- The Applicant shall have decision-making responsibility for the child of the marriage, L.G., with the assistance of her mother.
Parenting Schedule
- The parenting schedule for the child of the marriage, L.G., shall be as follows: a. L.G. shall reside with the Applicant’s mother at her residence in Bolton, Ontario. b. The Respondent shall have parenting time with L.G. at L.G.’s discretion.
Spousal Support
- Beginning July 1, 2020, and continuing on the 1st of each month thereafter, the Respondent shall pay spousal support to the Applicant in the amount of $674.00, being the mid-point amount suggested by the Spousal Support Advisory Guidelines, based on the Respondent’s 2019 annual income of $63,632.00 as reported on Line 150 of his 2019 Notice of Re-Assessment.
Section 7 Expenses
The Respondent shall forthwith pay to the Applicant the amount of $288.51, being 75.4% of L.G.’s s. 7 expenses incurred from May 2, 2019, to April 20, 2020.
Beginning May 1, 2020, and continuing on the 1st of each month thereafter, the Respondent shall pay to the Applicant $135.00, being his 75.4% proportional share of L.G.’s ongoing s. 7 expenses, consisting of tutoring ($100.00 per month), driver education ($60.00 per month), and prescription medication ($25.00 per month).
If L.G. enrolls in a full-time program of post-secondary studies and the parties are unable to agree on the amount of s. 7 expenses associated with it, the Applicant may move for a variation of the amount of s. 7 expenses to which the Respondent must contribute his proportionate share.
Costs
The Respondent shall pay to the Applicant her costs of this motion, fixed in the amount of $9,599.35, inclusive of fees, disbursements, and H.S.T., payable forthwith, together with 3% post-judgment interest.
These costs shall be enforceable as child support by the Family Responsibility Office.
Price J.
Released: July 31, 2020
COURT FILE NO.: FS-19-95861 DATE: 2020-07-31
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: T.G. Applicant - and – S.G. Respondent REASONS FOR ORDER Price J.
Released: July 31, 2020
1131843 Canada Inc. v. Double “R” Toronto Ltd. (1992) 7 C.P.C. (3d) 15 (Ont. Gen. Div., per Blair J., as he then was) at p. 17, approved in [Murano v. Bank of Montreal, 1998), (1998) 41 O.R. (3d) 222 (C.A.) at p. 244
2Mark Orkin, The Law of Costs (2nd edition) (2001 Canada Law Book), p. 23
3British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371 at paras. 25 and 26
4“Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
5First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359 ; Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041
6The principle that costs should not exceed the amount charged was articulated by Corbett J. in Mantella v. Mantella, (2006), 27 R.F.L. (6th) 76 (S.C.J.), subsequently approved by Aitken J., sitting as a Divisional Court judge in Geographic Resources.
7Referring to: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.) (released June 22, 2004); Moon v. Sher, [2002] O.J. No. 4651 (C.A.) (released November 16, 2004); and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.J. No. 160 (C.A.) (released January 24, 2005)
8Andersen v. St. Jude Medical Inc. (2006), 264 D.L.R. (4th) 557 (ONSC D.C.)
9Clarington (Municipality) v. Blue Circle Canada Inc, at para. 52
10Andersen v. St. Jude Medical Inc., para. 9, referring to: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.) (released June 22, 2004); Moon v. Sher, [2002] O.J. No. 4651 (C.A.) (released November 16, 2004); and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.J. No. 160 (C.A.) (released January 24, 2005)
11Sordi v. Sordi, 2011 ONCA 665 , 283 O.A.C. 287.
12Sims-Howarth v Bilcliffe, [2000] O.J. No. 330 (S.C.J.)
13C.A.M. v D.M., [2003] O.J. No. 3707 (C.A.), at para. 42.
14Berta v. Berta, 2015 ONCA 918 , at paras. 92-93.
15Perri v. Thind et al. (2010), 98 O.R. (3d) 74 (S.C.).
16Perri, at paras. 24-26, 32-33.