Poole v. Jack, 2013 ONCJ 199

COURT FILE NO.: 235/07 DATE: April 11, 2013 Citation: Poole v. Jack , 2013 ONCJ 199 ONTARIO COURT OF JUSTICE RE: KIMBERLY NICOLE POOLE – Applicant (Respondent on motion) and JACK DONALD JACK – Respondent (Applicant on motion) BEFORE: JUSTICE R. ZISMAN COUNSEL: Ann Stoner - for the Applicant James Donald Jack - self represented HEARD: by written submissions C O S T S E N D O R S E M E N T [ 1 ] This motion to change proceeded as a trial before myself on September 24 and 25 th and November 7, 2012. The decision was released on January 3, 2013. The parties were permitted to submit written submissions as to costs.

Ms Stoner on behalf of the applicant Ms Poole (“mother”) served her costs submissions with her offer to settle and bill of costs on Mr. Jack on January 15, 2013. Mr. Jack has not filed any responding submissions. [ 2 ] The motion to change by the respondent (“father”) sought to change the terms of the order of November 5, 2007 that had been obtained on an uncontested basis. Initially he sought a paternity test and if he was the father, access on alternate weekends and one evening a week and a reduction of his child support obligation.

The father did not pursue the paternity tests and conceded he was the child’s biological father. [ 3 ] By the time of the trial, the access issue was largely resolved as a result of the involvement of the Office of the Children's Lawyer.

Ms Susan Peacey, the clinical investigator appointed in the case was called as a witness but this was only with respect to some clarification that was required regarding her recommendations. [ 4 ] Therefore, most of the time of this trial involved the child support issues. [ 5 ] It was the father’s position that his child support obligation should be based on his actual income as of November 7, 2007. Based on the father’s actual income as of 2007, his support arrears would have been reduced to $1,051.99 and would not be obligated to pay any support for the years 2010 or 2011.

[6] It was the mother’s position that the temporary order should continue that is that the father be required to support of $188.00per month based on an imputed income of $21,200.00[1]. It was further her position that the father pay $150.00 per month as his shareof ongoing special expenses and that arrears be fixed at $7,6841.65. [7] The mother was the more successful party with respect to all issues in dispute. [8] The order provided a very detailed access

schedule as recommended in the report by the Office of the Children's Lawyer and asclarified in oral evidence. The father’s request for a police enforcement clause was not ordered. The mother’s request for a prohibitionon drug and alcohol use by the father and the necessity of the father to present a valid driver’s licence before any visits outside of thesupervised access centre was granted.

But her request for someone other than the access centre staff to determine if the father hadviolated the drinking and drugs prohibition was not granted. [9] With respect to the child support issues, there was a finding that income should be imputed to the father in the amount of$23,500.00 and in accordance with the child support guidelines he was required to continue to pay child support of $188.00 per monthand arrears were fixed at $7,841.65 repayable at the rate of $200.00 per month.

There was no order for the father to pay for any specialsection 7 expenses without prejudice to the mother to renew her request if the father’s financial circumstances improved. [10] The mother’s counsel served an offer to settle that was based on her understanding of the written recommendations of the Officeof the Children's Lawyer and the additional provisions mentioned above. The offer to settle proposed that the issue of ongoing childsupport be settled in terms of the temporary orders in place that is, that the father continue to pay $188.00 per month and that the arrearsbe fixed at $7,841.65.

No contribution was sought for any

section 7 expenses. [11] The offer to settle was served on the father on April 18, 2012 and was open for acceptance without cost consequences until April27, 2012 and thereafter although the offer to settle was still open for acceptance, the father would be liable for costs in an amount to bedetermined by the court. [12] The father did not make an offer to settle and accordingly the mother was required to incur legal costs that could have beenlargely avoided as the child support order and finding regarding the amount of arrears made after the trial was precisely the same as theterms of the offer to settle.

Although the mother was not successful on a minor detail on the terms of the access, this occupied only afew minutes in the trial and once the Office of the Children's Lawyer recommendations were clarified the mother immediately agreed tothe terms of access. [13] Subrule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out thebasic assumption that a successful party is entitled to costs. [14] Subule 24 (11) provides a further list of factors a court should consider in dealing with costs: A person setting the amount of costs shall consider,

a) the importance, complexity or difficulty of the issues;

b) the reasonableness or unreasonableness of each party’s behavior in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documents andcorrespondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) expenses properly paid or payable; and

f) any other relevant matter. [15] In Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behavior by litigants. [16] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004] O.J.

No. 2634 (Ont.C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particularproceedings rather than an exact measure of actual costs to the successful litigant. [17] Subule 18 (14) and Rule 18 (15) addresses the cost consequences of offer to settle as follows:

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery

of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3. The offer does not expire and is not withdrawn before the hearing starts. 4. The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14) .

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15) . ANALYSIS [ 18 ] Ms Stoner on behalf of her client submits that the mother as the successful party is entitled to her costs. She further submits that the bulk of the trial was with respect to the father’s unreasonable position regarding child support and that had he accepted her offer to settle the trial could have been avoided.

She seeks the amount of $25,000.00 in costs. [ 19 ] It is submitted that the amount of costs incurred since the offer to settle was served is $18,937.66 on a substantial indemnity basis and $14,953.24 on a partial recovery basis. The costs of the trial itself total $14,919.78 on a substantial indemnity basis and $11,189.83 on a partial recovery basis.

In total the costs incurred by the mother from her first consultation with Ms Stoner have been $36,188.90 which is a stark reminder of the heavy cost paid by the mother due to the father’s unreasonable attitude towards even paying the meager amount of $188.00 per month to support their child. [ 20 ] I have considered the following factors in assessing the amount of costs payable by the father to the mother: 1. The mother was the successful party in this trial. 2. The matter was important to both parties but not complex or difficult. 3. The father’s position regarding child support was unreasonable in this case.

The father should have accepted that the temporary order that significantly reduced his child support obligation and fixed the arrears was a reasonable basis upon which to resolve the litigation without the necessity of a trial. 4. Ms Stoner has 18 years of experience and her hourly rate of $400.00 is reasonable as is the hourly rate of $125.00 for her experienced law clerks. The disbursements for the cost of a process server and other incidental expenses are reasonable. 5. A detailed and comprehensive bill of costs was submitted.

As the mother was initially self-represented, Ms Stoner’s account includes her initial consultation with the mother and some time to review the pleadings and other documents which are appropriately included. The time spent for preparation and attendance at the trial are also reasonable. 6. As the offer to settle complies with subrule 18, the mother is entitled to full recovery of her costs since the date of effective service. Therefore, the bill of costs includes time spent and preparation for the various attendances before the case management judge. 7.

The other relevant consideration in this case is the father’s lack of financial resources. The father has no significant assets. Although income was imputed to him at the time of the trial he was not working and in any event income was imputed at the modest amount of only $23,500.00 and pursuant to the order he is also required to pay the outstanding arrears at the rate of $200.00 per month. [ 21 ] The overall objective of a cost award is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

In this case, the court cannot ignore the father’s financial situation and although the amount of costs requested is otherwise reasonable it would simply not be feasible for the father to pay $25,000.00 now or in the foreseeable future. The court must also be mindful that one of the objectives of a cost award is also to discourage and sanction inappropriate behavior by a litigant. [ 22 ] Taking into consideration all of these factors, the respondent shall be required to pay the applicant’s costs fixed in the amount of $10,000.00 inclusive of fees, disbursements and HST.

Such amount to be repaid at a rate of no less than $150.00 per month as of June 1, 2013 to permit him some time to organize his finances. [ 23 ] In order to discourage any further unnecessary or unwarranted litigation, the respondent shall not be permitted to commence any further motion to change if this outstanding costs order is not paid without leave of the court. ORDER AS FOLLOWS: 1. The Respondent James Donald Jack shall pay to the Applicant Kimberly Poole costs fixed in the amount of $10,000.00 inclusive of fees, disbursements and HST.

To be paid at the rate of no less than $150.00 per month as of June 1, 2013.

2. The Respondent James Donald Jack shall not be permitted to commence any further motion to change, without prior leave of the court, until the herein order for costs is paid. 3. This order to be enforced by the Family Responsibility Office as a support order. 4. Support Deduction Order to issue ___________________________ Justice Roselyn Zisman DATE: April 11, 2013