Court File and Parties

Court File No.: FS-20-55 Date: March 20, 2023 Superior Court of Justice - Ontario

Re: Sophie Jane Haggerty, Applicant And: Ian Peter Haggerty, Respondent

Before: MacNeil J.

Counsel: H. Staats – Lawyer for the Applicant A. Nicholls – Lawyer for the Respondent

Decision on Costs

[1] By my decision released January 13, 2023, the Applicant was successful on her motion for an order for child support and spousal support for the years 2019 and 2020.

[2] In addition to the support claims, the Applicant’s Notice of Motion, dated April 8, 2022, sought a number of orders for the production of financial documents and proof of amounts itemized by the Respondent. Prior to the hearing before me, the majority of those matters had been resolved and the parties had agreed on the amount of their respective incomes for 2021 and 2022 and the amount of child support the Respondent would pay based on his income for those years.

[3] The parties were unable to settle the issue of costs incurred in connection with the motion and made written submissions. This decision addresses those costs.

Position of the Applicant

[4] The Applicant seeks costs in the amount of $11,256.21, inclusive of HST. This calculation is based on a reduced hourly rate for the Applicant’s lawyer who is experienced counsel.

[5] The Applicant submits that there is no suggestion by the Respondent, nor any finding by the court, that she behaved unreasonably or in bad faith. To the contrary, the Respondent refused to pay any spousal support whatsoever and did not pay child support according to his actual incomes. The motion was extremely important to the Applicant. It was vigorously opposed by the Respondent.

[6] The Applicant relies on the decision Colucci v. Colucci, 2021 SCC 24, at paras. 49-51, wherein the Supreme Court of Canada discusses the “pivotal role of disclosure” in light of the underlying premise of the Federal Child Support Guidelines that the child support obligation should fluctuate with the payor parent’s income. And that “frank disclosure of income information” from the payor parent is a basic obligation in family law in order to ensure that informed decisions can be made, preferably without having to go to court, concerning support which is in line with income.

Position of the Respondent

[7] The Respondent submits that the Applicant was only partially successful on her motion, and there was divided success regarding the imputation of his 2019 income. He denies that he behaved unreasonably and notes that he did make support payments in 2019 and 2020 and was credited for same in the amount of $51,751.00.

[8] The Respondent disputes the claim in the Applicant’s Bill of Costs for 96 letters having been sent and received. He submits that there was only “a handful” of correspondence exchanged between counsel regarding the motion. (Counsel for the Applicant replies that he had correspondence with parties other than the Respondent’s lawyer, as well.)

[9] The Respondent contends that the amount claimed by the Applicant is excessive. He argues that partial indemnity costs should be awarded in the amount of $3,500.00 to reflect the partial success of the Applicant and the complexity and time that reasonably should have been spent on the motion.

Discussion

[10] Rule 24 of the Family Law Rules, O. Reg. 114/99 (“the FLR”) addresses the issue of costs. Rule 24(1) states that there is a presumption that a successful party is entitled to the costs of a motion.

[11] Rule 24(12) of the FLR outlines the factors to be considered in quantifying costs as follows:

(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.

[12] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the costs of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 46 O.R. (3d) 330 (Ont. C.A.), at para. 22; Serra v. Serra, 2009 ONCA 395, at para. 8. The Ontario Court of Appeal has recognized a fourth fundamental purpose required by the FLR, namely, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[13] Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs: see Beaver v. Hill, 2018 ONCA 840, at para. 12.

[14] Since the Applicant was the successful party, she is presumptively entitled to costs.

[15] In determining the amount to be awarded, I have taken into account the factors set out in Rule 24(12), including the following:

a. The spousal support and child support issues were very important to the Applicant, and it was necessary for her to bring the motion in order to obtain the relief granted. b. The motion was not uncomplicated since it related to the Respondent’s business income and involved review and analysis of the business’s financial records. c. I find that the hourly rate claimed by the Applicant’s counsel is reasonable. Having said that, in my view, some of the work done on the file could potentially have been done by a law clerk at a reduced cost. I also query the total time billed for reviewing the affidavit of Erwin Dely given that it was not a complex or particularly lengthy document. d. I have considered that the Respondent could reasonably have expected to pay costs in the event of lack of success on the motion.

[16] After considering the costs submissions, the bills of costs and the relevant factors, I find that an award of costs to the Applicant in the fixed amount of $8,208.00 is fair, reasonable, and proportional in the circumstances.

[17] Accordingly, the Respondent shall pay to the Applicant costs fixed at $8,208.00, inclusive of HST and disbursements, and the costs are payable within 30 days.

B. MacNeil J.

MacNEIL J. Released: March 20, 2023