citation: "Smith v. Richey, 2024 ONSC 535" parties: "Adrienne Patricia Joyce Smith v. Nathan Robert Richey" party_moving: "Adrienne Patricia Joyce Smith" party_responding: "Nathan Robert Richey" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "costs" date_judgement: "2024-01-24" date_heard: "2024-01-24" applicant:
- "Adrienne Patricia Joyce Smith" applicant_counsel:
- "Peter Sammon" respondent:
- "Nathan Robert Richey" respondent_counsel: "Self-represented" judge:
- "Julie Audet"
summary: >
The Applicant mother sought costs following a three-day trial. The court awarded the mother $15,000 in partial indemnity costs, payable by the Respondent father at $200 per month, deemed as support for Family Responsibility Office enforcement. The decision considered the mother's success, the absence of formal settlement offers, the father's late withdrawal of a claim for equal parenting time, and the reasonableness of his litigation conduct, while also accounting for his financial struggles and recent bankruptcy.
interesting_citations_summary: >
This decision provides guidance on assessing costs in family law proceedings, particularly concerning the weight given to informal settlement offers versus formal offers under Rule 18(14) of the Family Law Rules. It distinguishes between a party's general behavior and their litigation conduct for cost assessment purposes and highlights the court's consideration of a payor's ability to pay, including structuring payments over time and deeming costs as support for enforcement under the Family Responsibility Office.
final_judgement: >
The father shall pay costs to the mother in the amount of $15,000, payable at the rate of $200 per month until fully repaid. The entire amount shall be deemed support for the purpose of enforcement by the Family Responsibility Office.
winning_degree_applicant: 1
winning_degree_respondent: 5
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2024
decision_number: 535
file_number: "FC-20-000047-0000"
source: "https://www.canlii.org/en/on/onsc/doc/2024/2024onsc535/2024onsc535.html"
cited_cases:
legislation:
- title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: [] keywords:
- Costs
- Family Law Rules
- Partial indemnity costs
- Formal offer to settle
- Unreasonable litigation behavior
- Ability to pay
- Family Responsibility Office
- Child support arrears areas_of_law:
- Family Law
- Civil Procedure
# Court File and Parties
**COURT FILE NO.:** FC-20-000047-0000
**DATE:** 2024/01/24
**ONTARIO**
**SUPERIOR COURT OF JUSTICE**
**BETWEEN:**
ADRIENNE PATRICIA JOYCE SMITH Applicant
– and –
NATHAN ROBERT RICHEY Respondent
**Counsel:**
Peter Sammon, for the Applicant
Self-represented, for the Respondent
**HEARD:** In Writing
# Decision on Costs
**AUDET J.**
[1] On October 5, 2023, I released my decision in relation to this trial which was held over the course of three days. If the parties were unable to settle costs, I invited them to provide me with written submissions.
[2] Having received those submissions, I order the Respondent father to pay to the Applicant mother costs in the amount of $15,000, for the following main reasons:
1. As the successful party, the mother is presumably entitled to her costs on a partial indemnity basis;
2. I was not provided with any formal offer to settle made by either party. While I acknowledge that the mother’s Trial Management Conference Briefs reflected the terms that she was willing to settle for, which generally echoed the orders made at trial, these are not formal offers to settle which would attract the cost consequences of [rule 18(14) of the Family Law Rules, O. Reg. 114/99](https://www.ontario.ca/laws/regulation/990114) (hereinafter “the Rules”). I have nonetheless considered them in my decision as required by rule 24(12) (iii);
3. The father only withdrew his claim for equal parenting time on April 12, 2023, a few months before the trial began. This late amendment resulted in increased costs for the mother, for which she should receive some compensation as required by rule 12(3);
4. I do not find that the father behaved unreasonably in these proceedings, as claimed by the mother. The behavior with which the court is concerned in the context of assessing costs is a party’s litigation behavior, not his behavior in his day-to-day life. While some of the positions taken by the father were unlikely to succeed (such as his claim for joint decision-making responsibility), his decision to advance these claims did not reach the threshold of unreasonable litigation behavior;
5. The mother’s costs incurred throughout this proceeding (which lasted some three years and required six conferences for which costs were not adjudicated) amount to $38,680. I find that the legal fees charged by the mother’s counsel were very reasonable given the relative complexity of the issues raised and his level of experience;
6. However, in my view the mother is not entitled to full recovery costs, as she claims, but only to partial indemnity costs given the absence of any formal offers to settle, and my finding that the father did not act unreasonably.
[3] Based on all the above, I find that an award of costs in the amount of $15,000 is appropriate.
[4] The last issue to be considered is the father’s ability to pay such an award. As was anticipated at the time the trial was held, immediately after it was completed the father filed for bankruptcy. He continues to maintain that he is in the process of leaving the military and that he will be receiving a disability pension. What his income will look like in the future remains to be seen. However, what is known at this time is that the father has an ongoing obligation to pay child support in the amount of $1,146 per month based on his income of $75,484.00, as well as child support arrears in the amount of $8,802 (as of October 2023), payable at the rate of $200 per month. In addition to the above, both parties are required to pay the costs of the children’s supervised visits with their father in proportion to their respective income.
[5] There is no doubt that it will be a real struggle for the father to repay any cost award that I make today. His net disposable income after the payment of child support and arrears is (roughly) $3,400 per month. This does not take in account his share of the costs for supervised visits. The payment of these amounts must take precedence over the payment of costs, which militates in favour of an order for payment of these costs over time, in exchange of which there must be some form of guarantee that they will ultimately be paid.
[6] Considering all the above, I make the following order:
1. The father shall pay costs to the mother in the amount of $15,000.
2. Said costs shall be paid at the rate of $200 per month, until fully repaid.
3. The entire amount ($15,000) shall be deemed support for the purpose of enforcement by the Family Responsibility Office.
_______________________________
Madam Justice Julie Audet
Released: January 24, 2024