Court File and Parties
Court File No.: FC-10-2585-1 Date: 2020-01-30
Ontario Superior Court of Justice
Between:
Lucie Josee Nadon Applicant
– and –
Michel Whissell Respondent
Counsel: Suzanne Côté, for the Applicant Philip Augustine, for the Respondent
Heard: By written submissions
Costs Decision
Audet J.
[1] On November 19, 2019, I heard a motion brought by the Respondent father in which he sought to vary his child support obligations retroactively to 2014. The Applicant mother, who sought the dismissal of his motion, was successful. Following my decision released on December 11, 2019, the parties provided written submissions on costs, having been unable to resolve this issue between them.
[2] The mother seeks her full costs incurred in the context of this proceeding in the amount of $12,975.84 (inclusive of HST and disbursements). The father seeks an order that both parties bear their own costs.
Analysis
[3] 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 sub-rule 2(2) of the Family Law Rules, O. Reg. 114/99 (“the rules”) (Mattina v. Mattina, 2018 ONCA 867, 2018 CarswellOnt 17838).
[4] Sub-rule 24(1) creates a presumption of costs in favour of the successful party. There is no dispute here that the mother was fully successful. As such, she is presumptively entitled to her costs on a partial indemnity basis.
[5] Sub-rule 18 (14) provides that a party who makes an offer is entitled to costs to the date the offer was served and full recovery costs from that date, if all the conditions set out therein are met. The order made did not provide the father with a more favourable outcome than the offer he made. The mother did not make an Offer to Settle, which in this case may have been justified by the position she took from the beginning, namely, that the motion be simply dismissed.
[6] While the mother argues that the father acted unreasonably and in bad faith, the only argument raised to support this allegation is that the father failed to pay child support as ordered. This, in and of itself, does not meet the high evidentiary threshold required to establish unreasonableness or bad faith.
[7] I have reviewed the mother’s Bill of Costs and find that the time worked, and amounts charged were wholly reasonable. This is fully supported by the fact that the total cost charged to the father by his own counsel amounted to $47,361.89 (almost four times the amount).
[8] In all the circumstances, I find that the father should pay the mother her costs in the amount of $8,500, all inclusive.
[9] The entirety of this proceeding was attributable to the issue of child support. As such, it is reasonable that this cost award be enforced by the Family Responsibility Office as a child support order pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and I so order.
Madam Justice Julie Audet
Released: January 30, 2020
Court File No.: FC-10-2585-1 Date: 2020-01-30
Ontario Superior Court of Justice
Between:
Lucie Josee Nadon Applicant
– and –
Michel Whissell Respondent
Reasons for Decision
Audet J.
Released: January 30, 2020