COURT FILE NO.: 2918/14
DATE: 2020-12-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S.A., Applicant
AND:
L.B., Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: D. Barfknecht, Counsel, for the Applicant
Self-Represented Respondent
ENDORSEMENT
[1] In my 46 paragraph motion endorsement dated October 26, 2020 I set deadlines for written costs submissions.
a. The Applicant seeks costs and filed written submissions in accordance with those deadlines.
b. I did not receive any responding submissions from the Respondent.
[2] This was a complicated matter, both factually and legally.
[3] The Applicant mother’s motion dated October 1, 2020 included requests for the following:
a. Temporary child support for the youngest six children for the period commencing January 1, 2020 (with further retroactivity to be left to the trial judge). Arrears since January 2020 to be fixed at $50,106.00 payable at the rate of $2,000.00 per month. Ongoing child support in the sum of $5,081.00 per month commencing November 1, 2020, based upon the Respondent’s annual income of $217,206.00.
a. However, during submissions the mother’s counsel acknowledged that insufficient evidence had been presented with respect to the child support claim in relation to three of the children. Accordingly, during the hearing of the motion the mother amended her claim to seek child support for only three of the children.
b. The mother was successful in receiving child support for two of the children commencing January 1, 2020, with support for the third child being added as of April 1, 2020.
c. The mother was successful in establishing that this court has jurisdiction to award child support.
d. The mother was successful in establishing the father’s income.
b. Permission to relocate with the youngest two children to Windsor, Ontario, where the Applicant and the children would reside with the Applicant’s sister.
a. During the hearing of the motion the parties agreed that in light of the child support which was ordered, that if the father advanced an additional $5,000.00 by October 30, 2020, the mother would have sufficient funds to obtain accommodation in Hamilton.
b. However, the mother was successful in obtaining permission to relocate with the children in the event that the father did not provide the $5,000.00 advance.
c. Costs of the motion fixed at $5,000.00.
a. In her written submissions the mother’s counsel continues to request $5,000.00 costs. She asks that it be enforced through the Family Responsibility Office.
[4] The Respondent father’s cross-motion dated October 7, 2020 included requests for the following:
a. “An order denying in its integrality the applicant’s motion for child support.”
a. The father disputed that any child support should be ordered, based on two arguments.
b. Firstly, he alleged that the mother and the children were not living in Hamilton but that in fact they were residing in New York State. I rejected that submission and accepted the mother’s evidence that she and the children for whom support was ordered continue to reside in Hamilton.
c. Secondly, he challenged the jurisdiction of this court to make a child support order. I rejected that submission as well.
b. Rescission of a January 16, 2020 order. That order suspended the mother’s child support obligations to the father (relating to a time when the children were with the father) and suspended FRO enforcement of the mother’s arrears.
a. I did not grant this request.
c. An order prohibiting the mother from relocating the children to Windsor.
a. As stated, I did not grant this request by the father.
d. Granting the father sole decision-making authority with respect to schooling of the children.
a. I did not grant this request.
e. “Reinstating visitation and access to the children to where it was before the kicking incident.”
a. I did not grant this request, although I left it open for the father to return this issue on better evidence.
[5] In support of her request for $5,000.00 costs, the mother submits the following:
a. The mother was forced to bring this motion for child support because the father was not making any voluntary payments to her, even though he was earning significant income as a university professor.
b. The father refused to provide proper financial disclosure.
c. The mother was reasonable in seeking on a temporary basis retroactivity back to January 1, 2020, with further retroactivity being reserved to the trial judge.
d. The mother says she was “successful on every issue”. (In reality her motion initially requested support for six children. At the last minute she reduced her request down to three children. She was “successful” in obtaining her reduced request.)
ANALYSIS
[6] Costs rules are intended to foster four fundamental purposes:
a. To partially indemnify successful litigants;
b. To encourage settlement;
c. To discourage and sanction inappropriate behaviour by litigants; and
d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina 2018 ONCA 867(Ont CA); Serra v. Serra 2009 ONCA 395(Ont CA).
[7] Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840(Ont CA).
[8] Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 2003 S.C.C. 71 (SCC); Lewis v. Silva, 2019 ONCJ 795(OCJ); Lawrence v. Lawrence, 2017 ONCJ 431 (OCJ); Peladeau v Charlebois 2020 ONSC 6596 (SCJ).
[9] Rules 18 and 24 govern the determination of costs in family law proceedings.
[10] Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (SCJ).
[11] To determine whether a party has been successful, the court should take into account how the eventual order compares to any settlement offers that were made. Lawson v. Lawson, 2008 CanLII 23496 (SCJ); Ajiboye v. Ajiboye 2019 ONCJ 894 (OCJ). Rule 18(14) sets out the consequences of a party's failure to accept an offer to settle that is as good or better than the hearing's result.
[12] To my knowledge, neither party filed an offer to settle.
a. The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded, although there is no obligation to make an offer to settle. Beaver v. Hill 2018 ONCA 840 (ON CA).
b. Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties, and often narrowing the issues. In most cases it is unreasonable behaviour for a party not to submit an offer to settle. Potter v. DaSilva, 2014 ONCJ 443(OCJ); Laing v. Mahmoud, 2011 ONSC 6737 (SCJ); Menchella v. Menchella 2013 ONSC 367(SCJ); J.S. v. M.M. [2016] O.J. No. 1566 (SCJ).
c. The failure to make an offer to settle (on any issue where it would have been possible to do so) will generally be an adverse factor when assessing costs. H.F. v. M.H. 2014 ONCJ 526 (OCJ). Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Laing v. Mahmoud.
d. However, in this case, the mother’s failure to file an offer to settle on financial issues may be excused by the fact that the father had not provided sufficient financial disclosure to allow a financial offer to be calculated. Oduwole v. Moses [2016] O.J. No. 5636 (OCJ). The most basic obligation in family law is the duty to disclose financial information. This requirement should be automatic, immediate and ongoing. Family Court cannot function and vitally important family issues cannot be determined, until all necessary information is available. Martin v Watts 2020 ONCA 406(Ont CA); Leitch v Novac, 2020 ONCA 257(Ont CA); Mullin v Sherlock 2018 ONCA 1063(Ont CA); Fielding v Fielding 2015 ONCA 901(Ont CA); Roberts v Roberts 2015 ONCA 450(Ont CA); Leskun v Leskun 2006 SCC 25 (SCC). The father’s failure to make financial disclosure is an aggravating factor in relation to costs.
e. Similarly, the father’s failure to file an offer on the jurisdiction issue may be excused by the fact that this was a binary issue in relation to which the court would have to make a determination one way or the other. Where there is no room for compromise, it may be unrealistic to expect offers to be made. Beaver v Hill, 2018 ONCA 840 (ON CA).
[13] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly "divided" requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication. Jackson v. Mayerle 2016 ONSC 1556 (SCJ); Slongo v. Slongo, 2015 ONSC 3327(SCJ); Lippert v. Rodney, Norton and Norton; 2017 ONSC 5406(SCJ).
[14] In this case the mother was primarily successful although there was divided success in that the father was successful in resisting temporary support for three of the six children.
[15] I have considered Rule 24(12) which outlines the factors to be considered in quantifying costs.
a. The issues herein were important. The factual and legal dispute was complex.
b. The mother was justified in bringing a motion because the father refused to voluntarily pay child support even though there was clear need and ability to pay.
c. By the same token the mother’s motion requested support for six children, but it became clear during submissions that the mother’s materials did not include sufficient and required information to address support in relation to three of the children. The mother was reasonable in pursuing support for three of the children, but unreasonable in claiming support for the other three children without providing the necessary information.
d. It is difficult to assess the appropriateness of the legal fees and time spent because the mother’s lawyer did not provide a bill of costs.
e. There is no presumption in the Rules that provides for a general approach of "close to full recovery" costs. In this case, even if there had not been divided success, there would be no justification for full recovery costs because neither Rule 18(14) (matching/exceeding an offer) nor Rule 24(8) (bad faith) have been invoked.
f. The overall objective in is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes consideration of the unsuccessful party’s reasonable expectations as to the potential costs claim which might arise. Boucher v. Public Accountants Council of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.)
[16] Balancing all of these considerations, the Respondent shall pay to the Applicant costs of this motion fixed in the sum of $3,500.00 inclusive of HST and disbursements.
[17] The mother requests that costs be enforceable by the Family Responsibility Office.
a. Pursuant to section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act the court's authority to make orders directing that legal fees be included as a support order and enforced by FRO, is limited to costs awards arising out of support decisions. Clark v. Clark, 2014 ONCA 175 (Ont CA); D.G. v. A-G.D. 2019 ONCJ 156 (OCJ).
b. Where the court judgment involves a mix of support and other issues, the court has the discretion to determine what portion of the costs should be allocated to the support issue. See: Sordi v. Sordi, 2011 ONCA 665; Clark v. Clark; A.A. v. Z.G. 2016 ONCA 737 (Ont CA).
c. In this case I would estimate that 90 per cent of the costs ordered are attributable to the issue of child support. Accordingly, of the costs order, the sum of $3,150.00 shall be enforced by FRO. The balance is to be paid directly by the father.
Pazaratz J.
Date: December 10, 2020