COURT FILE NO.: FC-20-1732
DATE: 2021/10/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALICIA LADOUCEUR, Applicant
-and-
MARTIN PARENT, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Marc Coderre, for the Applicant
Self-represented Respondent
HEARD: In Writing
COSTS ENDORSEMENT
Introduction
[1] On September 7, 2021, the court heard the applicant’s motion for relief with respect to the parties’ only child, Ava Parent (DOB: September 25, 2010). The relief sought related to Ava’s primary residence, parenting time, child support (including arrears), Section 7 expenses, and beneficiary designations for the parties’ respective insurance and/or benefit plans.
[2] On the return of the motion, the parties resolved a number of issues and a consent order was made. That order is reflected in the court’s endorsement dated September 7, 2021. The subjects addressed in the consent order included parenting authority, communication, a detailed schedule for parenting time, special expenses, and the entitlement of the applicant to remove the respondent as the designated beneficiary of a life insurance policy.
[3] In the end, three substantive issues remained to be determined:
a) The applicant’s request for an order requiring the respondent to name the applicant as the beneficiary of a life insurance policy in the amount of $100,000;
b) The pick-up and drop-off times for the respondent’s parenting time with Ava every second weekend; and
c) The amount of child support, including arrears, that the respondent is to pay for 2020 and 2021.
[4] The court’s endorsement, addressing each of those issues, was released on September 15, 2021: Ladouceur v. Parent, 2021 ONSC 6112. Based on the applicant’s overall success on the second and third issues specifically, the court ordered that the applicant is entitled to her costs of the motion. The parties were invited to resolve the costs payable by the respondent. The parties were unable to resolve costs; written submissions with respect to costs were delivered.
Positions of the Parties
[5] The applicant requests that the court order the respondent to pay costs totalling $6,020.64. That amount represents 80 per cent of the full indemnity costs ($7,525.80) incurred by the applicant on this motion. The full indemnity costs are based on fees totalling $6,660.00 and HST thereon in the amount of $865.80. The costs claimed do not include any disbursements.
[6] In seeking recovery of a substantial portion of the full indemnity costs, the applicant relies on the respondent’s litigation conduct, including as outlined in the court’s September 15, 2021 endorsement. The applicant requests that the court order costs payable within 90 days of the date of this endorsement.
[7] The respondent asks the court to apply “the modern family law approach” with respect to costs and consider the financial hardship that the requirement to pay costs will impose on him. The respondent submits that he is unable to pay the support awarded ($487 per month), the arrears of support ($100 per month until arrears totalling $5,389 are reduced to zero), the applicant’s costs, and for the basic necessities of life.
[8] The respondent highlights that he also incurred costs for counsel, until he was no longer able to afford representation. The respondent incurred approximately $2,400 for the services of counsel prior to the end of 2020.
Overview of Costs in Family Law Proceedings
[9] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that costs are in the discretion of the court. A framework for awarding costs in family law cases is set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”). That rule begins with a presumption that the successful party is entitled to their costs: r. 24(1).
[10] When setting the amount of costs to be paid, the court is to consider the conduct of each party (r. 24(12)(a)(i)), offers to settle (r. 24(12)(a)(iii)), and legal fees incurred (r. 24(12)(a)(iii) and (iv)).
[11] These modern family cost rules are intended to foster four fundamental purposes: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The four fundamental purposes are described at para. 10 of Mattina as follows: “(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”.
Disposition
[12] For the reasons that follow, the respondent is ordered to pay the applicant’s costs of the motion in the amount of $5,000.00 inclusive of fees and HST. The costs are payable at the rate of $100 per month until such time as the full amount has been paid. The costs are enforceable through the Family Responsibility Office.
[13] The order with respect to the rate at which the costs awarded in this endorsement are payable is without prejudice to (a) the respondent to bring a motion, based on financial hardship, to vary that aspect of the award, and (b) the applicant to bring a motion, based on the respondent’s actual income for 2021, once disclosed, to vary that aspect of the award.
Analysis
[14] As set out in the Overview section of this endorsement, the factors to be considered include the parties’ respective litigation conduct, offers to settle, and the actual amount incurred for fees and disbursements. I deal with the factors in that order.
[15] First, the respondent’s litigation conduct was addressed in paragraphs 11-15 of the court’s September 15, 2021 endorsement. In summary, that conduct includes his failure to communicate in any way with counsel for the applicant prior to the return of the motion, his failure to deliver materials in response to the motion (despite having four months notice of the return of the motion), and his failure generally to fulfill obligations in the proceeding as prescribed by the FLR (i.e., the delivery of a financial statement).
[16] I turn next to offers to settle. The respondent asks the court to consider offers to settle that he made with respect to parenting time, etc. prior to the applicant initiating this motion. The court encourages parties to exchange offers and negotiate. That said, I note that the respondent ultimately consented to an order essentially on the terms set out in one of the applicant’s two offers to settle. The consent given on the return of the motion could have (a) been given prior to the return of the motion, and (b) served to reduce the work required by the applicant’s counsel to prepare for the motion.
[17] With respect to the applicant’s offers to settle (dated April 5 and July 29, 2021), I note the following:
• The respondent ultimately agreed to the parenting plan, etc. proposed by the applicant;
• The amount awarded for arrears of child support for the period from September 2020 to December 2020 is exactly the amount offered by the applicant; and
• The applicant’s offers with respect to arrears of child support for 2021 and for child support on an ongoing basis were based on the respondent being attributed income of $55,000 (April 2021 offer) or $59,000 (July 2021 offer). The child support awarded was based on attribution to the respondent of an income of $51,598 (i.e., with the support payments for 2021 remaining at the same level as they were for 2020).
[18] In summary, the court’s endorsement is not as favourable to the applicant as were the terms of the two offers to settle made on her behalf.
[19] Last, I turn to the fees actually incurred. The actual fees incurred of $6,660 are based on 18 hours of work by the applicant’s counsel at an hourly rate of $370. First, I find that the time recorded (13.5 hours) by the applicant’s counsel for the preparation of motion materials is reasonable. The materials included a notice of motion, two affidavits sworn by the applicant, a financial statement, and a factum with authorities. I also find that the time recorded (4.5 hours) by the applicant’s counsel for preparation for and attendance on the return of the motion is reasonable. Second, the hourly rate of $370 for counsel with over 30 years of experience in family law is entirely reasonable.
[20] In summary, the primary factor that contributes to my conclusion that the applicant is entitled to recover costs on something other than the full indemnity scale is that the overall outcome is slightly less favourable to her than were the terms of her offers to settle.
Summary
[21] The court orders as follows:
The respondent shall pay to the applicant, her costs of the motion in the amount of $5,000.00, inclusive of fees, disbursements, and HST.
The amount set out in paragraph 1, above, shall be paid at the rate of $100.00 per month until such time as the full amount has been paid.
This order for costs is enforceable through the Family Responsibility Office.
This order is without prejudice to (a) the respondent to bring a motion, based on financial hardship, to vary the rate set out in paragraph 2, above, and (b) the applicant to bring a motion, based on the respondent’s actual income for 2021, once disclosed, to vary the rate set out in paragraph 2, above
Madam Justice S. Corthorn
Date: October 25, 2021
COURT FILE NO.: FC-20-1732
DATE: 2021/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ALICIA LADOUCEUR, Applicant
-and-
MARTIN PARENT, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Marc Coderre, for the Applicant
Self-represented Respondent
COSTS ENDORSEMENT
CORTHORN J.
Released: October 25, 2021