COURT FILE NO.: FC-19-1668
DATE: 2020-10-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Isabelle Juteau, Applicant
AND
Daniel Orr, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Manraj Grewal, Counsel for the Applicant
Self-Represented, Respondent
HEARD: In writing
COSTS endorsement
M. Smith J
[1] On August 18, 2020, I heard a Motion regarding the imputation of the parties’ income. My endorsement was released on September 4, 2020 (Juteau v. Orr, 2020 ONSC 5324).
[2] The Applicant was the successful party. The imputed income was determined to be $40,000.00 (Applicant) and $230,000.00 (Respondent).
[3] The parties were unable to agree on the issue of costs. The Applicant seeks costs in the amount of $5,198.00 on a full indemnity basis.
[4] The Respondent has not filed any responding materials.
THE LAW
[5] Costs orders are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the Family Law Rules, O.Reg. 114/99 (the “FLR”).
[6] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in Rule 24(12) of the FLR, which includes the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, legal fees, expert witness fees and any other property payable expenses.
[7] Modern costs rules are designed to foster four fundamental purposes (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 subrule 2 (2) of the Family Law Rules (Mattina v. Mattina, 2018 ONCA 867).
[8] A partial indemnity award ranges from 60 to 70% of the actual costs incurred by the party (Mattina v. Mattina).
[9] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs (Beaver v. Hill, 2018 ONCA 840).
[10] Parties are obliged to make all reasonable efforts to settle the matter (Husein v. Chatoor, 2005 ONCJ 487).
[11] In exercising its discretion, the Court may take into account any written offers to settle, even if the offer does not meet the technical requirements of Rule 18(14) of the FLR (Winiarz v. Anderson, 2020 ONCJ 238).
THE ANALYSIS
[12] The Applicant was entirely successful in her Motion. She is presumptively entitled to her costs.
[13] The Applicant says that this Motion was originally scheduled for March 2020. However, due to the pandemic, it was heard in August 2020. Prior to the Motion, the Applicant amended her Notice to Motion to reflect a higher imputed income to herself. Although she was not working at the time, she proposed an imputed income of $40,000.00. I found the Applicant’s position to be fair and reasonable.
[14] The Applicant indicates that shorty before the Motion, the Respondent agreed to pay the arrears. It was not necessary for the parties to argue this issue, but it formed part of the Motion materials and time had already been spent in preparing for same.
[15] The issues were important for the parties, but they were not complex or difficult.
[16] I have reviewed the dockets from counsel for the Applicant. From February to August 2020, counsel spent 23 hours of time, at an hourly rate of $200.00, which I find is reasonable and proportionate in the circumstances.
[17] The Applicant argues that during this past year, not only has she made attempts to resolve the matter in its entirety but more importantly, she attempted to resolve the issues that were to be addressed at the Motion.
[18] On January 31, 2020, the Applicant provided a comprehensive and formal Offer to Settle all issues in the family proceedings. As part of the global offer, the Applicant proposed that the parties agree to imputed incomes in the amounts of $20,000.00 (Applicant) and $215,000.00 (Respondent). The Applicant states that no response was received by the Respondent to this offer.
[19] On July 16, 2020, the Applicant offered to resolve the child support, spousal support and section 7 expenses, in a total amount that was less than the amounts sought in her Motion. The Applicant also invited the Respondent to provide a counter proposal. His response was short and to the point: “Received and I kindly reject”.
[20] Although the Respondent has not made any submissions regarding costs, he deposes in his responding affidavit to the Motion, dated August 14, 2020, that he “consistently tried to negotiate with the Applicant; however, it has been a moving target”. In support of this assertion, he attached his email exchanges with the Applicant, from January until June 2020.
[21] I have reviewed the email exchanges. He writes about his financial difficulties during the pandemic and that he wants to work with the Applicant, not against her. Despite his desire to cooperate, the Respondent does not make any offers to settle child support, spousal support and/or the section 7 expenses. These emails do not support his position that he has consistently been trying to negotiate.
[22] The Applicant’s offers to settle do not comply with Rule 18(14) of the FLR, but it is nonetheless a factor to consider.
[23] Partial indemnity is the norm. If the Court is to deviate from this general rule and impose a higher cost award, there must be some reason for doing so. The Respondent should have considered the Applicant’s offers and engaged in settlement discussions. That said, his refusal to do so is not tantamount to bad faith and unreasonable conduct.
[24] Considering the factors set out above, I find that an award of partial indemnity costs, at the higher range is appropriate in the circumstances of this case. The Applicant’s costs are therefore fixed at $3,600.00, inclusive of disbursements and applicable taxes, payable within ninety (90) days.
M. Smith J
Released: October 27, 2020
COURT FILE NO.: FC-19-1668
DATE: 2020-10-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Isabelle Juteau
Applicant
AND
Daniel Orr
Respondent
COSTS endorsement
Justice Marc Smith
Released: October 27, 2020