Superior Court of Justice – Ontario (Family Court)
Court File No.: FC1346/18 Date: July 14, 2022
Re: A.W., applicant And: J.G., respondent
Before: Tobin J. Heard: written submissions filed
ENDORSEMENT ON COSTS
[1] The applicant (“father”) brought a motion to change asking the court to find that (1) his obligation to pay child support for his two children had ended and (2) he owed no support arrears.
[2] The respondent (“mother”) asked that the father’s child support obligation continue for the party’s younger child. She also sought a retroactive variation of child support.
[3] This matter was tried on May 12 and 13, 2022 (for two half-days).
[4] Written reasons were released on May 18, 2022.
[5] The decision of the court determined that the father’s obligation to pay child support had ended but after calculating a retroactive variation of child support, he owed arrears of child support in the amount of $1,370.
[6] The parties, unable to resolve the issue of costs, provided submissions on the issue.
[7] The father asks for costs fixed in the amount of $7,500.
[8] The mother concedes that the father is entitled to costs but disputes the amount claimed. She proposes that the appropriate amount is $1,000.
Legal Considerations
[9] Modern family law cost rules are based on broad objectives. These objectives are to partially indemnify successful litigants; to encourage settlement; to discourage improper behaviour by litigants; and to ensure cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[10] Cost awards are discretionary. In the exercise of discretion, the court must consider two important principles: proportionality and "the 'reasonableness' evaluation of the ultimate award": Beaver v. Hill, 2018 ONCA 840, at para. 4.
[11] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out the framework for awarding costs in family law cases decided in this court.
[12] An award of costs is subject to the factors listed in r. 24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r. 24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918, at para. 94.
[13] Rule 24(1) creates a presumption of costs in favour of a successful party.
[14] Rule 24(6) provides that if success in a step is divided, the court may apportion costs as appropriate. Divided success does not mean equal success. The court may look at the issues to determine if one party enjoyed greater success. In doing so, the court will look at the primary or the more important issues to determine if one party was more successful than the other.
[15] Rule 24(12) sets out factors that are relevant to setting the amount of costs. This subrule is formulated as follows:
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.
[16] In Beaver, at para. 12, the court stated with respect to r. 24(12) that:
… proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.
[17] In MacIntyre-McAlear v. McAlear, 2018 ONSC 2815, at para. 27, the court held that:
... if an offer is non-severable, the party basically must be able to establish they were successful in obtaining everything that they set out in their offer: Scozzaro v. Scozzaro, 2015 ONSC 3703 (Ont. S.C.J.) at para. 15; Hall v. Sabri, 2011 ONSC 6342, [2011] O.J. No. 4850 (Ont. S.C.J.); P. (M.) v. P. (W.), 2014 ONSC 6393 (Ont. S.C.J.) ...
[18] The Court must also be mindful of the parties' relative ability to pay costs. As stated by the Ontario Court of Appeal in Harrington v. Harrington, [2009] O.J. No. 827 (Ont. C.A.) at paragraph 8:
We acknowledge that the Respondent's offer to settle was much closer to the actual award than the Appellant's. At the same time, we bear in mind other principles respecting the award of costs in family law matters such as ability to pay and the relative means of each party to bear his or her own costs.
[19] 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: Scipione v. Del Sordo, 2015 ONSC 5982, at para. 23.
Discussion
[20] The costs of $7,500 claimed by the father are for the steps taken by counsel. These steps include:
- Obtaining a refraining order (2x);
- Obtaining an order suspending ongoing child support and enforcement (2x);
- Obtaining an order that London be the venue for the case;
- Attending at conferences and trial readiness court (4x); and,
- Participating in the trial that comprised two half-days.
[21] The father delivered an offer to settled dated October 25, 2021. The contents of the offer were comparable to the order granted, except with respect to arrears of child support.
[22] The mother argues that she was self-represented and unable to put “pertinent evidence” before the court. She also claims that the amount sought is not a fair or reasonable amount. She argues that the father’s lawyer only started to represent the father at a later stage in the case.
[23] The mother asks that the court take into account that the fees charged are disproportionate to the complexity of the case.
[24] This case was not a complex one but was important to the parties.
[25] Both parties acted in good faith.
[26] The father’s lawyer’s hourly rate ($200) was reasonable.
[27] The time spent before the offer (20 hours) and after the offer (15 hours) seems excessive in the circumstances of this case. The complexity and the issues did not warrant that much time being spent.
[28] Counsel fee at trial of $1,500 was most reasonable.
[29] The mother’s financial circumstances must also be considered. She is unemployed and survives on a pension. A statement of her income and expenses was provided. It reveals the mother sustains a monthly deficit.
Conclusion
[30] Based on these considerations, the court finds that a fair, reasonable, and proportionate amount of costs to be paid by the mother to the father on account of this case is $2,500 inclusive of disbursements and applicable taxes. The costs are to be paid at the rate of $100 per month commencing on the 1st day of September and on the first day of each month thereafter until paid in full.
“Justice B. Tobin”
Justice B. Tobin
Date: July 14, 2022