J.V.M. v. F.D.P., 2011 ONCJ 616

Toronto (North York) Registry No. D50923/10 DATE: 2011·XII·01 CITATION: J.V.M. v. F.D.P., 2011 ONCJ 616 ONTARIO COURT OF JUSTICE BETWEEN: J.V.M., Applicant, — AND — F.D.P., Respondent. Before Justice Stanley B. Sherr Heard in Chambers Endorsement inscribed on 1 December 2011 STATUTES AND REGULATIONS CITED Family Law Rules, O. Reg. 114/99 [as amended], subrule 2(2), subrule 2(4), subrule 24(1), subrule 24(4), subrule 24(5), subrule 24(10),subrule 24(11) and clause 24(11)(b). CASES CITED Boucher et al. v.

Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.). Delellis v Delellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam.Ct.). Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L. (6th) 274, [2005] O.J. No. 5715, 2005 Cars​well​Ont 7809 (Ont. C.J.). Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, 41 R.F.L. (6th) 10, [2007] O.J. No. 3416, 2007 Cars​well​Ont 5718 (Ont. C.A.). Laing v. Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 Cars​well​Ont 12972 (Ont.

Fam. Ct.). Lawson v. Lawson, , 167 A.C.W.S. (3d) 723, [2008] W.D.F.L. 3600, [2008] O.J. No. 1978, 2008 Cars​well​Ont 2819(Ont. Fam. Ct.). Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​well​Ont 2475 (Ont. C.A.). Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). Sophia L.

Williams ........................................................................ counsel for the applicant mother Tahir Majeed ............................................................................... counsel for the respondent father For previous proceedings, see J.V.M. v. F.D.P., 2011 ONCJ 615 (Ont. C.J.), per Justice Stanley B. Sherr. JUSTICE S.B. SHERR (endorsement):—

1: INTRODUCTION [1] This trial was about the parenting and child support arrangements for the parties’ son. I released my reasons fordecision on 7 November 2011 and invited written costs submissions. [2] Both parties made costs submissions. The applicant seeks costs of $20,000. The father seeks costs of $11,884. 2: DISCUSSION [3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​-well​Ont 2475 (Ont.

C.A.), confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partiallyindemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviourby litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by theunsuccessful party. [4] Subrule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended (the rules) creates a presumption of costs in favourof the successful party.

Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). To determine whether a party has beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See Lawson v. Lawson,, 167 A.C.W.S. (3d) 723, [2008] W.D.F.L. 3600, [2008] O.J. No. 1978, 2008 Cars​well​Ont 2819 (Ont. Fam. Ct.).

Theposition each party took at trial should also be examined. [5] I was not provided with an offer to settle by either party, although I was advised that the applicant made an offer tosettle at the outset of the trial that was not as good as the final result. The failure to make an offer to settle much earlier by either party isunreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the rules to dealwith cases justly (subrule 2(2)). This includes taking appropriate steps to save time and expense (subrule 2(3)).

Offers to settle play animportant role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See Laing v.Mahmoud, 2011 ONSC 6737, [2011] O.J. No. 5134, 2011 Cars​well​Ont 12972 (Ont. Fam. Ct.). The failure to serve an offer to settle willbe an adverse factor when assessing costs. [6] Overall, the mother was the more successful party at trial. Both parties sought sole custody orders. The mother wassuccessful on this issue. However, the father was able to obtain an order for more access than the mother proposed.

The mother soughtto impute the father’s income at $80,000 per annum. The father wanted his income fixed at $22,000 per annum. I fixed his income at$65,856 per annum and made retroactive support adjustments. I find that the mother was far more successful than the father on thesupport issue. She will be entitled to costs. [7] In making this decision I have considered the factors set out in subrule 24(11) of the rules which reads as follows:

(11) Factors in 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 behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party orwitnesses, drafting documents and correspondence, 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. [8] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause24(11)(

b) above). It reads as follows:

(5) Decision on reasonableness.— In deciding whether a party has behaved reasonably orunreasonably, the court shall examine, (

a) the party’s behaviour in relation to the issues from the time they arose, including whether theparty made an offer to settle; (

b) the reasonableness of any offer the party made; and (

c) any offer the party withdrew or failed to accept. [9] Subrule 24(4) of the rules is applicable in this case. It reads as follows:

(4) Successful party who has behaved unreasonably.— Despite subrule (1), a successful party who hasbehaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered topay all or part of the unsuccessful party’s costs. [10] This case was not complex or difficult. It was important for the parties. [11] Both parties acted unreasonably. Neither party made a timely offer to settle. The father provided incomplete andmisleading financial disclosure. The mother did not comply with the court’s direction to file the trial brief, or a documents brief.

She didnot provide her direct evidence by affidavit as directed by the court. These were court orders and not suggestions. There will be costsconsequences as a result.

[12] The bill of costs of the mother’s counsel was seriously lacking in particularity. It did not set out counsel’s level ofexperience or her hourly rate. There was very little detail of work done. I found the time claimed to be excessive. She claimed 75 hoursfor preparation for this two-day trial and 5.5 hours to prepare a page and a half of simple costs submissions. She included time spent atcase conferences and settlement conferences. Subrule 24(10) sets out that costs are to be determined in a

summary manner after eachstep in the case by the presiding judge. A “step” in the case is one of the discrete stages recognized by the rules such as a caseconference, settlement conference and the like. See Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L. (6th) 274, [2005] O.J. No. 5715,2005 Cars​well​Ont 7809 (Ont. C.J.). The trial judge should not deal with requests for costs that were addressed or should have beenaddressed at these prior steps in the case. See Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, 41 R.F.L. (6th) 10, [2007] O.J. No.3416, 2007 Cars​well​Ont 5718 (Ont.

C.A.). [13] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.), and Delellis vDelellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam. Ct.). Boththese cases point out that, when assessing costs, it is “not simply a mechanical exercise.” In Delellis v Delellis and Delellis, JusticeDavid R.

Aston wrote at paragraph [9]: [9] However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asamended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates”when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome.

The overallobjective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successfullitigant. . . . 3: THE ORDER [14] Taking into account all of these factors, the respondent shall be required to pay the applicant’s costs fixed at $5,000,inclusive of fees, disbursements and HST. [15] The respondent may repay these costs in the sum of $250 per month on the first day of each and every month,commencing on 1 January 2012.

However, if he is more than 30 days late in making any of these payments or the ongoing or arrearssupport payments set out in my judgment, the entire amount of arrears shall immediately become due and payable.