COURT FILE NO.: FC-19-627
DATE: 2022/08/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wendy Elizabeth Fitzgerald, Applicant
AND:
Richard Patrick Fitzgerald, Respondent
BEFORE: Somji J.
COUNSEL: Rodney Cross Counsel, for the Applicant
Respondent, Self-Represented
HEARD: In Writing
COSTS ENDORSEMENT
Overview
[1] The mother seeks partial indemnity costs for a motion brought to obtain retroactive and ongoing child support, spousal support, and disclosure. The father argues that he is entitled to costs as there was divided success on some issues.
Issue 1: Is the mother entitled to costs?
[2] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[3] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.
[4] The starting point is that the successful party is presumptively entitled to costs: r. 24(1). However, in assessing entitlement to costs, judges must also consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).
[5] The mother was the successful party on the issues of child support and disclosure and is presumptively entitled to costs. The remaining issue of retroactive and ongoing spousal support is to be adjudicated at trial given there was one, insufficient information from both sides for the court to fairly adjudicate this issue, and two, the calculation of spousal support was further complicated by the father’s arguments that the mother’s income should be imputed to a higher amount and furthermore, any spousal support owing to her should be offset by occupation rent. The mother disputes both of the father’s claims. The issues around spousal support require additional evidence from the father and an opportunity for the mother to fairly respond as a consequence of which I ruled the matter is best left for trial.
[6] The fact that the mother’s request for retroactive and ongoing spousal support was adjourned to trial does not mean the father was successful on this issue. On the contrary the mother’s entitlement to retroactive and ongoing child support remains to be decided. As addressed in my decision, 2022 ONSC 2445, the father was paying a monthly lump sum amount of support of $754/month since separation in 2018 with no specification by him whether this amount was for child or spousal support. This amount of $754 fell short of even the basic child support amount owing to the mother, and was increased following my motion decision to $1841/month. The mother may well be entitled to additional retroactive and going spousal support over and above and above child support of $1841/month.
[7] In addition, the fact that I ordered costs of production of some financial records to be shared between the parties and adjourned the father’s request to impute income against the mother does not result in divided success. The bulk of the time on this motion brought by the mother was spent on retroactive and on-going child support as well as resolving the mother’s longstanding request for financial disclosure both of which the mother was successful on. The mother was substantially success and presumptively entitled to costs: Zhang v Guo, 2019 ONSC 5767 at para 7.
[8] Finally, the mother’s request for financial disclosure does not constitute an allegation of embezzlement against the father. The mother is entitled to historical financial disclosure to properly assess and advance her claim for division of property. Such a request does not constitute unreasonable conduct on the part of the mother so as to disentitle her to a costs award.
[9] I find there was nothing in the mother’s conduct that would disentitle her to a costs award. The only issue is the quantum of the award.
Issue 2: What is the appropriate amount for the costs award?
[10] In determining cost awards, the parties and the court must consider that 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, as per r. 2(2), that cases are dealt with justly: Mattina at para 10.
[11] Rule 24(12) requires a judge to consider the following factors in determining quantum:
(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.
Offers to settle
[12] On the principal issue of child support, the father did not provide a reasonable or meaningful offer that would warrant a reduction in the costs award. While the father offered to pay a lumpsum amount of monthly support to the mother, the starting point for the father’s offer was based on the premise that the parties share two of the children and only the third resides with the mother. In addition, the father’s calculations for support imputed an income over and above the mother’s line 150 income. Consequently, the father’s calculation for both child and spousal support payable under the Child Support Guidelines, O. Reg. 391/97 as am. and Spousal Support Advisory Guidelines (https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/toc-tdm.html) was significantly lower than that calculated by the mother and my order of child support alone.
[13] With respect to the mother’s offers, while no formal offer was made, it is clear that the mother has consistently been requesting the minimum amounts of child and spousal support under the respective Guidelines. These requests were set out in her affidavit of March 2021, her Notice of Motion July 2021, and her response to the father’s offer dated January 19, 2022.
Conduct of the parties
[14] It was evident from the father’s pleadings that he was frustrated by the repeated changes in the mother’s counsel and that the issues in dispute had not been resolved outside of court. However, the issue of child support is not a complex one and could have been determined, upon agreement of where the children reside, by resort to the Child Support Guidelines. I agree with counsel that the mother’s motion for child support was unnecessary.
Time spent on issues
[15] In determining quantum, I must consider whether the costs sought are reasonable: Mattina at para 13; Berta v Berta, 2015 ONCA 918, 128 O.R. (3d) 730 at para 94.
[16] The total costs for the motion including disbursements and HST are $6,186.15. The legal billings alone totaled $5,355. This does not include additional fees incurred by the mother for draft orders which I have directed the mother’s counsel to prepare given the father is self-represented as well as other information and jurisprudence requested by me from the mother’s counsel during the motion. The mother seeks partial indemnity costs in the amount $4,124.10.
[17] Upon review of the Bill of Costs, I find the amount charged of $315/hour was highly reasonable given counsel’s 41 years of experience. Counsel spent time communicating with the client, preparing affidavits, pleadings and supplementary submissions, as well as attending for the hearing, all of which was appropriate considering the complexity of the issues on the motion. Counsel’s billings are very reasonable.
Reasonableness and ability to pay
[18] Finally, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371 at para 11; M(A.C.) v M (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at para 45.
[19] The father’s cost submissions do not address his ability to pay or time to pay. Rather, the father focuses on his own request for costs in the amount of $2,681 which I find he is not entitled to having found the mother was the successful party on this motion.
[20] Having considered that the mother is the successful party, the father’s conduct, the offers to settle, the complexity of the issues, and the reasonableness of the costs request, I find that a costs award to the mother in the fixed amount of $4,124.10 is fair and reasonable in this case.
Order
[21] There will be an order that the father will pay costs to the mother in the fixed amount of $4,124.10 within 90 days.
Somji J.
Date: August 18, 2022
COURT FILE NO.: FC-19-627
DATE: 2022/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Wendy Elizabeth Fitzgerald, Applicant
AND:
Richard Patrick Fitzgerald, Respondent
BEFORE: Somji J.
COUNSEL: Rodney Cross Counsel, for the Applicant
Respondent, Self-Represented
COSTS ENDORSEMENT
Somji J.
Released: August 18, 2022