Court File and Parties

Court File No.: FC-10-00000482-0000 (Kingston) Date: 2022-03-07 Superior Court of Justice - Ontario

Re: Sherry Lynne St Cyr, Applicant And: James Brian Deveau, Respondent

Before: Madam Justice Cheryl Robertson

Counsel: Lucienne MacLauchlan, for the Applicant Mark LaFrance, for the Respondent

Heard: In writing, at Kingston

Costs Endorsement

[1] Both parties filed written costs submissions following trial. The Respondent was the successful party on the issues that proceeded to trial.

[2] Through their counsel, the parties settled some issues and agreed on some facts, thereby reducing the trial time to 3 days. They focused the trial on the issues of retroactive support and contribution to past extraordinary expenses.

[3] It was necessary to determine the Respondent’s income over several years. It was complicated. They required professional assistance. It was expensive. Now they have a formula to determine future increases. This benefits both parties and hopefully will avoid further conflict.

[4] The parties each advanced Offers to Settle. I have considered the offers of settlement, comparing them to the result. I find the Respondent’s offers to settle were reasonable, and appropriate. The Applicant got some of what she asked for in the issues they settled. My reasons outlined there is no fixed formula for retroactive relief. The Applicant's offers to settle included a dismissal of her claim for contribution to past section 7 expenses which is consistent with the Judgment. The parties settled the issues of child support for the period November 2019 through November 2021. The original claim to increase support occupied little time at trial.

[5] This family had not triggered disclosure obligations as negotiated in their separation agreement years earlier. The child support payment became inadequate. The Respondent father’s business income increased over the years. He was unaware of the full extent of the increase in his income for purposes of calculating child support. Legal and accounting principles as well as fairness required a variety of factors to be considered. He needed professional help to identify the proper income for child support calculations. It was necessary and expensive to determine his income over multiple years to answer the claim. The Applicant mother also spent considerable resources trying to determine his income. The Applicant engaged an accountant, at a cost of $5,480.50 to determine the Respondent's income for the years 2018, 2019 and 2020. This accountant's report resolved the issue of the Respondent's income for those years which was the basis of the partial settlement.

[6] The total costs incurred by the Respondent father (excluding costs associated with the Case Conference and the Settlement Conference) were $69,935.32, including a payment to BDO Canada Ltd. of $32,991.25 regarding the income issue. He acknowledged that a portion of legal fees and payment to BDO Canada Ltd. were necessary in any event for the proper determination of the father’s income for child support purposes. He is asking for costs of 80% of his legal fees and disbursements ($29,555), and 50% of the BDO Canada Ltd. fees ($16,495).

[7] The total cost amount he claims is $46,000, payable over time or at the Applicant mother’s option, a discounted payment to the Respondent in the sum of $36,000 provided this payment is made within 60 days of the date of this Order.

[8] The Applicant's counsel is a 30 year call and charges $300 per hour. The Applicant's total solicitor-client costs were $29,579.80 inclusive of disbursements and HST. She conceded that the Respondent’s counsel charged a reasonable rate of $350 per hour given his expertise and experience. I find both lawyers’ rates to be reasonable.

[9] Neither party disputes the law of costs in Ontario. Following the amendments to Rule 24 of the Family Law Rules in July of 2018, the decisions in Beaver v. Hill, 2018 ONCA 840 and Mattina v. Mattina, 2018 ONCA 867 have clarified the law relating to costs in a family law proceeding. As noted in subsection 24(12)(a), when setting the amount of costs, the court is to consider the reasonableness and proportionality of each of the factors under the following general headings as they relate to the importance and complexity of the issues, behaviour, written Offers to Settle, time spent by each party, legal fees and rates, expenses incurred (Subrules 24(12)(a) (ii), (iv) to (vi)), any other relevant matter. In assessing reasonableness, both parties made efforts in writing to resolve the matter by agreement. They settled many core issues. Both parties conducted the litigation in an unimpeachable manner. The parties genuinely disagreed about the issue tried. The income issue was complex. There was no bad faith.

[10] 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. See: Mattina, particularly paras. 9, 10, 12 and 15.

[11] I have carefully considered the Family Law Rules and submissions of both parties. Consideration of success is the starting point in determining costs. Setting an amount of costs is subject to the factors listed in Rule 24(12), Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. Rule 24(5) provides guidance on how to evaluate reasonableness.

[12] As requested by the Applicant, in assessing what is just, reasonable, and proportional, I have considered the impact that the cost award will have on her (Murray v. Murray (2005), 79 O.R. (3d) 147 (C.A.)) and its effect on the care, maintenance or interests of children (C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (Ont. C.A.)). She did not provide any detail of her concern beyond a general submission to keep costs low. The Applicant submits the Respondent is in a better financial position to absorb the cost of this litigation. While she recognizes she cannot use her financial position as a shield against costs, she asks the court to consider she has in her full-time care two children with exceptional needs. She submits her income has recently been reduced to $68,387 (effective February 1, 2022), and that the Respondent's income is $194,666.

[13] The Respondent has indicated in his submissions that he was prepared to accept monthly payments. The Respondent indicated a willingness to offer a discount for a quick cash payment. I do not order it here but urge him to continue to offer a costs reduction for prompt payment and to be mindful of the Applicant’s cash flow concerns.

[14] I agree with the Respondent that there is no general principle relating to costs that requires wealthier individuals to pay more for costs for the same step in a proceeding than less wealthy ones: Saroli v. Saroli, 2021 ONSC 7491 at para. 21 [citing Beaver v. Hill, 2018 ONCA 840 at para. 18].

[15] Recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs. Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[16] The assessment of costs is not simply a mechanical exercise: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.) at para. 26. The costs award should reflect more what the court views as fair and reasonable for the unsuccessful party to pay rather than any exact measure of the actual costs to the successful litigant.

[17] Having regard to the factors and considerations outlined above, I find that it is just and reasonable in the circumstances that the Applicant mother pay the Respondent father costs of $26,000 inclusive of HST and disbursements.

[18] PURSUANT TO THE FAMILY LAW RULES, THIS COURT ORDERS THAT:

1. The Applicant, Sherry Lynne St Cyr shall pay to the Respondent, James Brian Deveau costs fixed in the amount of $26,000, inclusive of fees, disbursements, and HST.

Robertson J. Date: March 7, 2022