Introduction

[1] During the May, 2021 sittings I heard a five-day trial concerning the Applicant’s claim for spousal support and the Respondent’s request for a review of spousal support. The issue of spousal support was originally settled in 2015 by way of a consent final order wherein the Respondent agreed to pay spousal support to the Applicant. However, the issue of ongoing spousal support was merely deferred as the 2015 final order contained a review clause effective five years after the order. This trial arose from the review proceedings that the Respondent promptly commenced upon the expiry of that five-year period.

[2] At trial, the major issue was not whether spousal support was payable; that was determined in 2015. Dr. Howard raised the following issues at trial:

a. The nature of the spousal support claim of Ms. Howard and whether she had a compensatory or non-compensatory claim;

b. Whether Ms. Howard had made sufficient efforts to become self-sufficient and whether income should be imputed to her beyond the $50,000 per annum attributed to her in the 2013 settlement;

c. Whether Dr. Howard’s post separation income increases should be taken into account in setting spousal support; and

d. Duration of spousal support and whether spousal support was to be time limited with a step-down reduction at the end.[^1]

[3] I determined that the claim for spousal support was both compensatory and non-compensatory and that post-separation income increases would therefore be used to quantify spousal support. In accordance with established case law, I determined as well that self-sufficiency considerations were only one of many issues to be accounted for and that no income be imputed to Ms. Howard beyond the $50,000 per annum agreed to by the parties in 2015. Finally, I based the support partially on the child support which was agreed to by the parties prior to trial and I determined that there would be a time limit to support with a “step-down” as suggested by the Respondent.

[4] Spousal support was not the only issue in this proceeding. Prior to trial, child support was also in issue due to the fact that there were several changes in circumstances including a change in residency by one child and s. 7 post-secondary expenses. When the original order was made in 2013, all of the children lived with the applicant mother. Since then, the oldest child, Gemma, who had attended university in Victoria, changed residences and moved in with her father. Relations between Gemma and her mother remain strained. The middle child, Phoebe, moved in with her father for a period of time, but then she moved back in with her mother and had little to do with her father at the time of trial. She attends Waterloo University and plans to go into dentistry. The youngest child, Alex, was quickly estranged from his father after separation and remains so; he now attends Western University and continues to live with his mother during the summers. All three children had moved back into their parents’ homes prior to trial because of COVID.

[5] The parties settled the child support issues by Minutes of Settlement dated May 18, 2021 and reduced to a final court order signed at the commencement of trial. Child support was difficult to settle and the settlement was complex based upon the various needs of the children, their university attendance, the split of primary care and the guideline support for summer residency. Costs of that settlement proved impossible to resolve and, as the parties were proceeding to trial on spousal support, they agreed that costs of the child support claim would also be included in these costs submissions. However, the Respondent has abandoned his claim for costs for the child support issues and has only claimed costs for the spousal support issues. Neither party made extensive submissions on the costs for negotiating child support.

[6] The major issues for determination of costs are the effects of the various offers to settle, the issue of whether success was divided or whether there was a clearly successful party and the issue of unreasonable behaviour as raised by the Applicant. The Respondent also takes exception to the amount of costs claimed by the Applicant.

Entitlement to Costs

[7] The parties settled child support prior to trial but reserved the right to make submissions on costs on that issue. They went to trial over spousal support.

[8] A portion of the costs were in respect to pre-trial issues, including settlement conferences and attempts to resolve the proceedings. The spousal support award is largely based upon the agreement as to guideline child support which is a factor which must be accounted for in setting spousal support. It is impossible to segregate costs on the basis of child support as opposed to spousal support although the trial costs are only in respect of spousal support.

[9] Generally, the successful party is entitled to his or her costs of the litigation: see r. 24 (1) of the Family Law Rules.[^2] However, there are exceptions to the rule: these exceptions involve offers to settle made by the parties or alternatively unreasonable or bad faith behaviour which may displace the presumption of costs normally payable to the successful party.

[10] All in, costs involve an exercise of discretion by the trial judge taking into account certain factors. These are outlined in the leading case of Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625 (C.A.) which states that costs awards are meant to address four fundamental purposes:

a. to partially indemnify successful litigants;

b. to encourage settlement,

c. to discourage and sanction inappropriate behaviour by litigants and;

d. to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

[11] Each party requests costs and there are stark differences in the quantum sought. The Applicant seeks full recovery costs of more than $162,000; the Respondent asks for nearly $67,000 in costs. Each party states that they were the successful party. Success is addressed by the major issues litigated at trial as well as the offers to settle exchanged prior to trial. As well, the Applicant submits that the Respondent is guilty of unreasonable behaviour.

Offers to Settle

[12] The settlement of the child support issues was complex and was arrived at after several lengthy settlement conferences. The matter was resolved after a lengthy settlement conference with Boswell J. and a subsequent trial management conference with Krause J.

[13] Numerous offers to settle were made. Although the offers were severable, my decision concerning spousal support was arrived at based upon the child support settlement because spousal support is affected by the child support payable at particular periods of time. Therefore, the trial decision was tied to the child support settlement made prior to trial.

[14] A summary of the different offers to settle can be found at Schedule B of the Applicant’s Costs Submissions. It makes it apparent that concerning the findings at trial of the parties’ incomes and the nature of spousal support claim (compensatory or non-compensatory), the Applicant’s offers were closer to the result at trial although the actual quantum of spousal support was not. On the issue of a termination date, both parties’ offers offered a termination date. On the issue of a step-down in support as spousal support came to an end, the husband’s offers included that as a term of support. Finally, the wife says that success was divided on the total quantum paid in spousal support. Mr. Owen agrees, although he emphasizes that on quantum, the Respondent’s offers were closer in regard to the total of support that would be payable.

[15] It is apparent that none of the offers to settle are in accordance with the result at trial. Each party’s offers had elements that were closer to the result than the others. Both parties had termination dates for spousal support with the Applicant having spousal support extend for a longer time than my decision, the Respondent’s for a shorter period of time. Although the Respondent’s offers had a step-down provision similar to that at trial, they also placed the husband’s income at a lesser amount than was determined at trial. The Applicant’s offers were largely in accordance with my determination as to the Respondent’s income for spousal support purposes and several of her offers had a lower amount of income attributed to the Respondent. Although the Respondent says that his offers were closer for a total of the gross amount payable for support, the total amount payable is often less important than how the spousal support is paid and over what period of time.

[16] For costs to be awarded under r. 18 (4) of the Family Law Rules, the offer must either be severable, allowing portions of the offer better than the result at trial to be accepted, or the offer must be, in all respects, demonstrably better than the result at trial: see Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v. Rebiere , 2015 ONSC 2129 (SCJ) and Scipione v. Scipione , 2015 ONSC 5982 (SCJ). None of the husband’s offers were severable and although the wife’s formal offers were severable, this was only between the child support and spousal support sections in the offers and not the various elements of spousal support. None of the offers to settle served by either party in this matter were demonstrably better than the results achieved at trial.

[17] Even where an offer cannot be said to comply with r. 18 (4), the offer may still be taken into account in the determination of costs under r. 18 (16). I do take into account the fact that many of the Applicant’s offers were severable, which is important to the issue of costs: see Paranavitana v. Nanayakkara, supra at para. 13. I also take into account that it is apparent that the settlement of the child support was based upon the structure of the Applicant’s offer to settle made on May 7, 2021. As well, I also take into account the fact that I largely followed the structure of the Applicant’s submissions on spousal support, largely again based on the child support settlement. All of these factors show, in my view, a greater intention on the part of the Applicant to compromise which is an important factor in awarding costs: see Beaver v. Hill, 2018 ONCA 840.

[18] I do not find that either party’s offers impact on a finding as to whether an individual party was successful at trial or in the child support settlement.

Parties’ Success

[19] Success largely determines the award of costs as costs follow the event under r. 24 (1).

[20] There are two areas in which success must be determined. The Applicant continues to seek an order for costs for the child support negotiations. Both parties seek an award of costs for trial, which was on the issue of spousal support only.

Child Support

[21] Child support was set by agreement of the parties after extensive negotiations at several settlement conferences, including an all-day settlement conference with Justice Boswell and a subsequent trial management conference with Justice Krause.

[22] Child support is largely income driven. The provisions of offers concerning income are crucial to this issue. In the agreement, the parties agreed on what the children would be doing at university in coming years (even though an unexpected co-op for Phoebe while living at home caused a brief disagreement). They also agreed on an income amount for the Applicant at the imputed amount that she had previously agreed on of $50,000 per annum; as well, they agreed that the Respondent had an income for child support purposes of $711,000 per year.

[23] As stated, the offers were largely divided as to the issue of success. However, the first offer in which the Respondent agreed to the income figures set out above was in his offer of April 22, 2021; the Applicant agreed to use those income figures in her offer of May 7, 2021. This would appear to indicate the Respondent was the person who broke the logjam on the income issue. However, this does not assist in a determination as the Respondent has abandoned his claim for costs for child support: see para. 17 of the Respondent’s costs submissions.

[24] There is no basis for awarding costs for child support in the costs submissions of the Applicant other than the fact that the Applicant’s template was used to adjust and determine child support. That is not sufficient to award costs for the child support issue.

[25] There is no demonstrable success by either party concerning the settlement of child support which would warrant an award of costs.

Spousal Support / Costs of Trial

[26] Who was successful at trial? To determine this, the court must examine the major issues which were addressed at trial: see Firth v. Allerton, [2013] O.J. No. 3992 (S.C.J.) and Mondino v. Mondino, 2014 ONSC 1102. The time taken at trial becomes important when success is somewhat divided as the offers in this matter indicate.

[27] This was a spousal support trial. It was hard fought. The issues were typical of these trials: what was the basis for the Applicant’s entitlement for spousal support? What were the incomes of the parties? What quantum and duration of spousal support should be ordered? There were fundamental disagreements on all of these issues by the parties.

[28] The Respondent disputed the Applicant’s claim for compensatory support. The Respondent said that the Applicant was well able to work throughout the marriage, and that he attempted to have her do so on numerous occasions. He testified that the Applicant did run the household but that she had assistance through hired help and the children in doing these tasks. He said that he helped in getting the children to their activities and took the position that support should be non-compensatory.

[29] Dr. Howard was unsuccessful on this issue. I found that the Applicant had a good compensatory claim. She moved to Barrie to facilitate the Respondent’s employment. She was the primary caregiver of the children, and that is important as these children were heavily involved in their sports and activities throughout their school years. The Respondent alienated the children after separation, and continues to be alienated from his son because of his own actions; I found that this prevented the Applicant from fully involving herself in obtaining employment after separation. I found that the Applicant was entitled to support on both compensatory and non-compensatory grounds.

[30] Another major issue was the Respondent’s position on income for spousal support purposes. Notably, he spent a lot of time at trial attempting to impute income beyond the amount that the Applicant had previously agreed to in 2015 ($50,000 per annum) for support purposes. Again, he was completely unsuccessful in doing so. He failed to adequately prove the income that the Applicant might have had if she had obtained a contract teaching position; his filing of a “pay grid” for teachers in Ontario proved nothing without evidence of what that meant. He also suggested alternate employment for the Applicant; his suggestion that the Applicant move to British Columbia or Saskatchewan with the children for employment purposes was found to be unreasonable and self-serving. He provided no evidentiary foundation to impute income to the Applicant beyond what she had already agreed to.

[31] The Applicant also attempted to have his income fixed at the income used by him in 2015 and argued that post separation increases ought not be used in determining spousal support. That was also not well thought out: the 2015 income was an estimate only without any actual evidence as to his 2015 income provided at this trial. His income at separation was actually higher than the 2015 estimate. And the Respondent’s post-separation income was used for support purposes based upon my finding that support was compensatory in nature. The Respondent’s position on “triangulation” of his income (because his income was above the SSAG ceilings) was found to have no legal foundation.

[32] However, there were other major issues where the Respondent was successful or success was divided. The Applicant took the position at trial, for example, that spousal support should be indefinite in nature; that was not my finding at trial. I also agreed with the Respondent’s position that support should “step down” at the end of the day. Based upon the submissions of the parties and the offers, success on the issue of duration was divided.

[33] However, the bulk of the evidence at trial was concerning the nature of the Applicant’s claim for support, the parties’ relationship with the children and the incomes of the parties, especially that of the Applicant. In these issues, on which the majority of time at trial was taken, the Applicant was largely successful.

Unreasonable Behaviour

[34] Irrespective of the issue of success, a party may have costs awarded against him or her because of unreasonable behaviour: see r. 24 (4). As well, unreasonable behaviour may be used to set the amount of costs to be awarded against a party: see r. 24 (12). Certainly, one of the purposes of costs set out in Mattina is that costs should penalize a party who has behaved unreasonably.

[35] There is no allegation of bad faith behaviour under r. 24 (8); however, the Applicant suggests that the Respondent is guilty of unreasonable behaviour on a number of fronts, and I agree.

[36] The Respondent in his testimony made no secret of the fact that he was contemptuous of the Applicant and that he held her in little regard. However, that viewpoint, at times, crossed into unreasonable behaviour by the Respondent.

[37] There were a number of instances of unreasonable behaviour on the part of the Respondent, some of which were mentioned by me in my endorsement. His practice of urging the Applicant to pursue certain career opportunities was, for me, one instance of unreasonable conduct. As I mentioned in my decision, his urging the Applicant to move with the children to British Columbia so that she could work as a teacher went “beyond the pale” and showed little regard for what might have been best for the children. He also told the Applicant that she should not pursue a career in medicine and that she should look at pharmacology which was also interfering and self-serving. It was not his place to make these suggestions.

[38] His alienating of the children soon after separation was another example of acting unreasonably. The email from him to the children about their behaviour after separation was something completely inappropriate to be sent directly to the children and had the effect of alienating the children from him, something I note that he had accused the Applicant of during the proceedings. The Respondent’s son continues to be estranged from him. That left the Applicant solely responsible for having to transport the children to and from their activities which contributed to her compensatory claim for support, which claim the Respondent then vigorously denied.

[39] There were other occasions of unreasonable behaviour. In correspondence from Ms. Aylwin to Mr. Owen, she notes that Dr. Howard had ceased to pay the support that he was obliged to pay under the court orders in this matter, notwithstanding the fact that those orders stated that the support would continue until changed by the court. Ms. Howard had to enforce the court orders through the Family Responsibility Office.

[40] As well, there was poor litigation conduct by the Respondent at the trial. One of the directions to the parties under the Trial Scheduling Conference brief was that the parties place their evidence in chief before the court by way of affidavit. The Respondent did not comply with this direction, thereby lengthening the trial. As well, that meant that the Applicant had to give oral evidence as she would normally have filed affidavits that responded to the Respondent’s evidence in chief: she was unable to do this in her affidavits because Dr. Howard failed to provide any affidavit evidence prior to trial.

[41] As well, the Applicant had to do a disproportionate amount of the work toward settlement and toward providing the income and other documentation for the trial; many of the trial exhibits were also exhibits to her affidavit. For example, the Respondent’s counsel never entered Dr. Howard’s financial statement or his income tax returns as trial exhibits; the only place I could find this evidence were exhibits attached to the Applicant’s affidavit. Ms. Aylwin notes that her templates were used for child support and for my determination of spousal support and I agree. My sense was that a disproportionate amount of the work in providing documentary evidence for trial was done by the Applicant’s counsel.

[42] I disagree, however, that the factums filed by the Respondent’s counsel constituted unreasonable behaviour; although I disagreed with Mr. Owen’s position on “triangulation” of income, I found the cases that he filed and referred to as being useful in my analysis.

[43] Notwithstanding this, I find that the Respondent was guilty of unreasonable behaviour within the meaning of r. 24 (4).

Determination on Entitlement

[44] The issues of child support and s. 7 expenses for the children were agreed to prior to trial. The parties reserved the right to argue the costs of that issue.

[45] There is no possible way to determine whether one or the other party was successful on the issue of child support. The arrangement arrived at was based on income determinations agreed to by the parties prior to the settlement conference. However, once income was determined, the issue of child support was settled after at least two judges had weighed in on those issues. Neither party made any compelling arguments in their costs submissions regarding the issue of costs payable for the negotiation and settlement of child support issues.

[46] Dr. Howard, at trial, made baseless allegations that Ms. Howard had misused education funds when the children went to university. He made those allegations even though child support was not in issue at trial. In any event, Dr. Howard has abandoned his claim for costs for child support and those allegations are therefore not relevant to the costs issue.

[47] Other than the fact that the Applicant’s template was used in the settlement of child support, there is no evidence that either party contributed more to the settlement of that issue. There will be no award of costs concerning the child support issues which were resolved by the parties prior to trial.

[48] Regarding spousal support, this issue was largely dependent on the quantum and arrangement for child support arrived at between the parties. Again, it is difficult, if not impossible, to segregate the costs for the negotiation of spousal support issues prior to trial from the negotiation of child support.

[49] Therefore, I am only willing to award costs for the preparation for and conduct of the trial of spousal support.

[50] I find that the Respondent should bear the costs of the trial in this matter. I do not do this on the basis of the offers filed by both of the parties; the Applicant’s offers were severable and may have been more settlement oriented than were the Respondent’s but neither party’s offers were better than the result for each of them and success was essentially divided based upon the offers.

[51] I focus instead on the issues that dominated this trial and unreasonable behaviour. On the former, I note that the Respondent strongly advocated against a finding that the Applicant had a compensatory claim for support and asked that income should be imputed to the Applicant beyond the $50,000 per annum that the Applicant had previously agreed to. All of these efforts were unfounded and the findings at trial were the opposite of what the Respondent advocated.

[52] I also find that the Respondent was guilty of unreasonable litigation behaviour. It all began badly when he upset the children shortly after separation by sending them an email accusing them of not doing enough to foster his relationship with them; those effects linger today especially regarding the parties’ youngest child. His actions delayed the Applicant’s return to the workforce because the children did not want the Respondent involved in their numerous activities, leaving the transportation burden on the Applicant. He sent a number of “suggestions” as to career paths to the Applicant including a surprising suggestion that she move to western Canada to further her teaching career; the Applicant’s career was not his business and contributed to the Applicant’s narrative of abuse and control. To further his position as to the Applicant’s claim for compensatory spousal support, he demonstrated his own contempt of the Applicant’s efforts in running a large home and a busy household while he worked long hours. All of these were unreasonable positions resulting in this trial on the issue of spousal support.

[53] As well, the Respondent failed to follow the trial scheduling conference endorsement by failing to provide his evidence in chief by affidavit. That lengthened the trial and resulted in the Applicant having to give oral evidence in chief to respond to the Respondent’s evidence; the Applicant should have been able to do this by affidavit as planned at the Trial Scheduling Conference. As well, the Applicant had to do more of the heavy lifting than the Respondent in trial preparation and in providing documentation for trial and she should be compensated for these efforts.

[54] I therefore find that the Respondent’s conduct and his position at trial justify a finding that the Respondent should pay the Applicant’s trial costs in this matter.

Quantum of Costs

[55] Including argument, this was a five-day trial. The issues were moderately complex; there was, for example, no need to cross examine the income valuator retained by the Respondent; that valuator’s evidence was accepted by the parties. The issues focused on the facts, some of which were historical in nature. The Respondent had only his evidence; the Applicant had three other witnesses as to historical events and evidence supporting her position and which also went to her role with the children after separation. Those witnesses were balanced; one witness confirmed that the Applicant’s attempts to get into medical school were ill-founded and that she advised the Applicant of this.

[56] Ms. Aylwin’s hourly rate as set out in the material was $400 per hour. Considering her seniority, I do not find this to be unreasonable. Considering the amount of documentary evidence filed at trial, mostly by the Applicant, her use of law clerk assistance is also reasonable.

[57] The facts do not attract an award of full recovery costs. The offers do not support this as the results based on the offers were divided. Although I have made a finding of unreasonable conduct on the part of the Respondent, that conduct is not sufficiently egregious to permit a finding of full recovery costs. The costs in this matter will be assessed on a partial recovery basis.

[58] I have reviewed both the Applicant’s and the Respondent’s Bill of Costs. They were difficult to compare, as the Applicant’s cost summary broke the costs down by event while the Respondent provided the dockets for the work done by Mr. Owen’s firm for Dr. Howard. However, I note that there is a serious contrast in the quantum claimed by each firm: from March 12, 2021 to December 31, 2021, Dr. Howard’s lawyers claimed a total of only $66,531.58 inclusive of HST and disbursements (and these disbursements do not appear to include the costs of the Respondent’s income valuations used at trial). Ms. Howard claims costs for a similar period of time (April to December, 2021) of $161,932.96 again inclusive of disbursements and HST.

[59] I have already stated that the Applicant can only claim the costs of the trial, which would, of course, include the Trial Management Conference and the Trial Scheduling Conference. These costs would not include the Settlement Conference for which she claims $11,366 and at which child support was discussed according to the Bill of Costs.

[60] The Applicant also claims trial preparation costs of more than 112.4 hours for herself (and for her law clerk of 110 hours). There is nothing summarized for trial preparation in the Respondent’s accounts against which I can compare this to. However, it may be reflective of the fact that the much of the trial documentation was provided by the Applicant including documents that should have been filed by the Respondent as noted above. However, I still find the Applicant’s trial preparation time excessive, and I reduce that amount to 75 hours for both counsel and the law clerk, which makes sense for a trial set to take five days and not overly complicated.

[61] The total costs on a full indemnity basis, removing the charges for the settlement conference and reducing preparation time, would then be $105,141.50 and with HST, that amount would then increase to $118,809.50. I find the Applicant’s disbursements to be reasonable, and these would then increase the total fees by another $1,090.26 for a total of $119,899.76. Partial indemnity costs are between 50% and 60% of that total.

[62] I therefore find that the Respondent shall bear the Applicant’s costs of the trial fixed in the amount of $65,000 inclusive of HST and disbursements. As spousal support was in issue in these proceedings, if these costs are not paid within 60 days, they are enforceable as support through the Director, Family Responsibility Office.

Justice J.P.L. McDermot

Released: February 4, 2022

[^1]: During trial, Ms. Aylwin suggested that spousal support be of indefinite duration with a review; in her written submissions and draft order, she acknowledged that spousal support was to be time limited to 18 years as opposed to the Respondent’s claim that support be limited to 15 years. The submissions also had differences as to whether high end as opposed to mid to lower end spousal support be used in determining the amount of spousal support.

[^2]: O. Reg. 114/99

Howard v. Howard, 2022 ONSC 760

Case Summary

Introduction

Entitlement to Costs

Offers to Settle

Parties’ Success

Child Support

Spousal Support / Costs of Trial

Unreasonable Behaviour

Determination on Entitlement

Quantum of Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1