COURT FILE NO.: 2548/12
DATE: 2022-09-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LUIS CARLOS LIMA Applicant
– and –
BILINDA KEARSTEN MCCARTHY Respondent
Murdoch Carter, for the Applicant
Leah Gensey, for the Respondent
HEARD: Written Submissions
varpio j.
decision on costs
[1] This was a trial that lasted approximately two weeks wherein the father sought to have joint decision-making and week about access. He also sought changes to child and spousal support quanta and duration. Specifically, the father sought the following relief:
a. Joint decision-making in order to allow him more input into the boys’ lives;
b. “Week about” parenting time;
c. Imputation of income to the mother to reflect the fact that she is in a position to return to work;
d. Variation of the existing child support payments to reflect:
(i) The hoped for change in parenting time; and
(ii) The mother’s hoped for imputed income;
e. A termination of spousal support effective November 1, 2023. In the alternative, the father asks that spousal support should reflect the mother’s imputed income.
f. A termination of child support obligations for the eldest child, who is now in university; and
g. A determination that certain s. 7 expenses were in fact unreasonable given the parties’ financial situation.
[2] In contrast, the mother sought the following relief:
a. Continued decision-making authority for the three boys;
b. No changes to the parenting schedule as the three youngest boys have succeeded under her care;
c. Continued child support for the eldest child;
d. Retroactive child support to reflect the father’s increase in income since 2013;
e. Continued spousal support which will enable the mother to further her educational pursuits; and
f. The father’s proportionate contribution to section 7 expenses.
[3] The parties exchanged offers to settle prior to the commencement of litigation but all the offers were “capitulation offers” whereby both parties effectively asked the other to abandon their respective positions. They are therefore not material considerations.
[4] I released reasons which are reported at 2022 ONSC 1383. At trial, the father failed to receive joint decision-making, but was awarded increased parenting time, had income imputed to the mother, obtained a termination date for spousal support and had some s. 7 expenses deemed unreasonable. The eldest child continues to be eligible for child support, the mother continues to receive spousal support, retroactive support was ordered and some of the s. 7 expenses sought by the mother were awarded.
[5] The parties disagree as to whether the nature of the award is such that father should be considered to be “successful” as per Rule 24 of the Family Law Rules. The father submits that he was largely “successful” at trial and seeks $25,000 in costs which would reflect some level of success.[^1] The mother seeks no costs order as she submits that the success was divided.
ANALYSIS
[6] The relevant portions of Rule 24 of the Family Law Rules state:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
Successful party who has behaved unreasonably
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
Decision on reasonableness
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
Divided success
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
Setting costs amounts
(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. O. Reg. 298/18, s. 14.
[7] As I consider the results achieved at trial, it occurs to me that the results were divided, although the father achieved some reasonable level of success. First, the father’s parenting time increased substantially. Second, the mother was imputed a full-time income and had her spousal support obligations fixed with a termination date of September 1, 2023. Third, child support for the eldest child was also fixed with a termination date. Fourth, a reasonable portion of the eldest child’s s. 7 expenses were found to be unreasonable. These facts suggest that the father was somewhat successful in the aggregate.
[8] On the other hand, the mother’s success at trial mitigated some of the father’s achievements. The father failed in his attempt to receive joint decision-making authority, he did not obtain “week about” parenting time, the mother was successful in some s. 7 expense claims, she continued to receive spousal support and the eldest child continues to be eligible for child support. In total, the mother’s success was not as pronounced as the father’s success, but her success significantly mitigates the father’s claim for costs.
[9] It should also be noted that mother’s concerns regarding the father’s alleged use of corporal punishment – as testified to by the eldest child and the mother’s brother – were such that the mother had an evidential basis to oppose the father’s claims for increased parenting time. Although I ultimately awarded a meaningful increase in parenting time, I did so with some caution given the evidence put forward by the mother. While this evidence was not sufficient to cause me to deny the father’s claim, it is sufficient to negate the remainder of the father’s claim for costs since the mother’s position in this regard had some reasonable justification. Put another way, this issue needed to be litigated.
[10] Ergo, in light of the somewhat divided results of the trial, and the aforementioned Rule 24 factors, there will be no costs award.
Varpio J.
Released: September 13, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LUIS CARLOS LIMA
- and –
BILINDA KEARSTEN MCCARTHY
DECISION ON COSTS
Varpio J.
Released: September 13, 2022
[^1]: The father acknowledges that his success does not justify costs on a scale typical for a successful two-week trial.