Amos-Scott v. Amos, 2024 ONSC 7030

COURT FILE NO.: FS-21-0114 DATE: 2024/12/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AMOS-SCOTT, Tara Applicant – and – AMOS, Daniel Respondent

Counsel: R. Leckie, for the Applicant Self-represented, for the Respondent

Heard: July 22, 2024

CORRECTED REASONS FOR DECISION ON COSTS

Correction is listed on page 6 wilcox, j.

Introduction

[1] My decision after the uncontested trial of this matter invited costs submissions from the applicant. These have been received.

[2] The parties were married on July 10, 1993, after about a year of co-habitation. They had two children, now adults, and separated on August 1, 2017. They entered into a Separation Agreement dated February 11, 2018, but the Respondent allegedly failed to abide by it. Under the Separation Agreement, spousal support was to start in February, 2020, but did not. Rather, the Respondent made only twenty-one payments of $1,260 each in most months between March 1, 2021, and December 1, 2022, inclusive. The Respondent also cut off the Applicant’s access to medical benefits and provided no proof that he was complying with the Separation Agreement.

[3] The applicant claimed for spousal support, medical insurance coverage, life insurance coverage on the respondent and her designation as a beneficiary of his RRSP investments, all as provided for in the separation agreement.

[4] The applicant’s needs were great. She had health problems, had no employment, and required money for housing and prescriptions but had been refused social assistance because of the separation agreement.

[5] The applicant’s evidence was that the respondent had been well employed in a trade with pension and benefits. However, she was unable to get current information about that because of his non-cooperation.

[6] It was found that the respondent was aware of the court proceedings but was not taking them seriously nor living up to his obligations under the separation agreement.

[7] In the result, the respondent was ordered to pay spousal support, to provide ongoing proof of meeting the requirements of the separation agreement, and to pay costs.

[8] The applicant’s costs submissions noted the history of the case as touched on above, the need for her to bring five motions, the failure of the respondent to produce any offer to settle, and the requirement to prepare for and attend at the uncontested trial. The hourly rate and the total costs claimed were modest.

Law on Costs

[9] Modern costs rules are intended to serve three purposes:

to indemnify successful litigants for the cost of litigation
to encourage settlements, and
to discourage and sanction inappropriate behaviour by litigants. [1]

[10] It has been held that a fourth fundamental purpose has been added by the primary objective of the Family Law Rules, that cases be dealt with justly. [2] Justly is defined in the Rules to include:

(a) ensuring that the procedure is fair to all parties; (b) saving time and expense; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[11] “In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O. R. (3d) (Ont. C.A.), the Ontario Court of Appeal indicated that a costs award should be a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant”. A “fair and reasonable amount” is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation.” [3]

[12] Family Law Rule 24 commences with the presumption that a successful party is entitled to its costs. Rule 24(12) requires that, 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 fess, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) Any other relevant matter.

[13] “(Under) the Family Law Rules … judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure …since no scales of costs are mentioned in the Family Law Rules.” [4] Rule 24(12) sets out the appropriate considerations in fixing the quantum of costs.” [5] As the wording of the Rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. [6]

[14] [33] Although they are not specified in Rule 24(11) as factors in determining costs, the financial means of the parties, their ability to pay a costs order and the effect of any costs ruling on the parties and the children of the family are also relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien, 2012 ONSC 97.

[23] A useful benchmark for determining whether costs claimed are fair, reasonable and proportionate is to consider the amount that the unsuccessful party paid for their own legal fees and disbursements in the same matter. See Smith Estate v. Rotstein 2011 ONCA 491 (Ont CA); Durbin v. Medina, 2012 ONSC 640 (SCJ); Scipione v. Del Sordo 2015 ONSC 5982 (SCJ); Zhang v. Guo, 2019 ONSC 5767 (Div Ct); Laidman v. Pasalic and Laidman, 2020 ONSC 7068. Of course, we lack the benefit of this in the present case.

Conclusion

[15] Taking into account the law and rules about costs awards as interpreted in various court decisions, I find that the applicant’s request for costs of $3,000.00 inclusive is appropriate in the circumstances of the case and I award that amount, to be paid by the respondent to the applicant forthwith.

Wilcox, J. Released: December 10, 2024

Correction

COURT FILE NO.: FS-21-0114 DATE: 2024/12/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AMOS-SCOTT, Tara Applicant – and – AMOS, Daniel Respondent REASONS FOR DECISION on costs Wilcox, J. Released : December 10, 2024

CORRECTED DECISION : The text of the original decision was corrected on December 13, 2024, and the description of the correction is appended below: