Court File and Parties

COURT FILE NO.: F1251/16 DATE: February 3, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Kara Louise Johnston, applicant AND: David William Johnston, respondent

BEFORE: TOBIN J.

COUNSEL: Stephanie L. Doucet for the applicant David William Johnston in person

HEARD: written submissions filed

ENDORSEMENT on costs

[1] On December 30, 2019, this court released reasons for judgment following a trial that dealt with the applicant’s claim for spousal support on a motion to change.

[2] The respondent was ordered to pay spousal support to the applicant in the amount of $2,100 per month from January 1, 2017 to December 31, 2030.

[3] The parties were invited to make written submissions on costs. The applicant filed her submissions within the time allowed. She requests costs of $27,000. The respondent did not file any costs submissions, nor request additional time to do so.

Legal Considerations

[4] Modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. A fourth purpose is provided for at r. 2(2): to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.), at para. 10.

[5] The successful party is presumptively entitled to costs of her case: Family Law Rules, O. Reg. 114/99, r. 24(1).

[6] An award of costs is subject to the factors listed in r. 24(12), which provides as follows:

SETTING COSTS AMOUNTS

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.

[7] Rule 24(12) specifically emphasizes “reasonableness and proportionality” in any costs award.

Analysis

[8] The position of the respondent at trial was that he not be required to pay any spousal support.

[9] The order provided an amount of support ($2,100) that was less than the amount sought by the applicant in her offer to settle ($2,500). As well, the duration of spousal support sought by the applicant was indefinite, that is, potentially longer than the fixed term provided for in the order.

[10] It is clear that the applicant was more successful in achieving the relief she sought than was the respondent. Consequently, I find that she is entitled to her costs of this case: Family Law Rules, O. Reg. 114/99, r. 24(1).

[11] This case was very important to the parties. For the applicant, the spousal support sought was the only income available to her other than social assistance. The respondent was clear in his position at the trial that he had paid all the spousal support he should ever have been asked to pay.

[12] This case was complex in that it dealt with spousal support in circumstances where the recipient was ill and this affected her ability to achieve any measure of self-sufficiency. It required the court to determine whether there was ongoing entitlement and if so found, the assistance the Spousal Support Advisory Guidelines could provide.

[13] As well, the court was required to consider expert evidence which addressed the applicant’s health and employment prospects, as well as the respondent’s income and income potential.

[14] The applicant did act reasonably in this case. She delivered an offer to settle.

[15] The respondent did not act reasonably. In particular: (1) he did not deliver an offer to settle; (2) he filed a trial affidavit that constituted his evidence in-chief that contained much argument and reference to jurisprudence; and (3) the respondent failed to attend at oral questioning in Hamilton, Ontario, despite having been served with a notice of questioning. A second attendance was required for oral questioning.

[16] Applicant’s counsel spent 144.8 hours on this case. Her law clerk spent 55.7 hours. It is difficult for the court to assess the reasonableness of the time spent because there is no breakdown of what time was spent on the various components of the case. I accept that counsel’s hourly rate of $200 was quite reasonable for a lawyer called to the bar three years ago.

[17] As set out above, the applicant did serve an offer to settle that requested, in part, $2,500 per month in spousal support from December 1, 2016. This was not an unreasonable offer based on the evidence relied upon by the applicant. It was a reasonable starting point for settlement discussions with the respondent. It appears that the offer was met with silence. The court was not provided with any offers served by him.

[18] The applicant claimed disbursements of $4,711.10, which included but did not detail the cost of each expert’s report and their attendance at the trial. Having regard to the reports prepared by the experts and the evidence given by them, I am satisfied that expert witness fees in total are reasonable.

[19] The ability of a party to pay costs is another factor for the court to consider when determining the amount to be paid. In this case, I imputed the respondent’s income to be $131,000 per year. He gave evidence of his challenging financial circumstances. At the same time, the court must also consider that a lack of financial resources cannot be used as a shield to permit a party to litigate with impunity.

[20] Based on these consideration, I find that a fair, reasonable and proportionate amount of costs to be paid by the respondent to the applicant following a six day trial is $20,000 inclusive of disbursements and applicable taxes.

[21] The applicant asks that any costs awarded be made payable to Legal Aid. The request is that the court specify that the costs are the property of Legal Aid Ontario, that it is the creditor and not the applicant. The applicant’s request in this regard appears to be made pursuant to Legal Aid Ontario’s Better Billing Bulletin Volume 50, to which I was referred. This court prefers not to become involved in retainer arrangements. This is not and should not be the court’s concern: Tahir v. Kahn, 2019 ONCJ 781, at para. 33.

[22] The applicant also asks that the court specify that the costs award in this case relate in their entirety to the spousal support claim of the applicant. This is the case.

“Justice Barry Tobin”

Justice Barry Tobin

Date: February 3, 2020