H.A. v. M.M., 2016 ONCJ 320

COURT FILE NO. D47948/09 DATE: 2016-06-02 CITATION: H.A. v. M.M. , 2016 ONCJ 320 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) H.A. ) ) ) RENATTA AUSTIN, for the APPLICANT ) APPLICANT ) ) - and - ) M.M. ) REGINA SENJULE, for the RESPONDENT RESPONDENT ) ) ) ) ) ) HEARD: IN CHAMBERS JUSTICE S.B. SHERR COSTS ENDORSEMENT [ 1 ] On May 2, 2016, the court released its reasons for decision after a three-day trial. [ 2 ] The court granted the respondent’s (the mother) request to move the child’s residence to British Columbia. It ordered specified access for the applicant (the father).

Ongoing child support was set at $566 per month. During closing submissions, the parties reached an agreement with respect to retroactive support and the repayment of accumulated support arrears by the father.

[3] The parties were given permission to make written costs submissions. Both parties made these submissions. The mother seeksher partial recovery costs of $5,000. The father asks that no costs be paid. [4] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.) stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, toencourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflectwhat the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [5] Subrule 24(1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Considerationof success is the starting point in determining costs. See: Sims-Howarth v.

Bilcliffe (ON SC), [2000] O.J. No. 330(SCJ- Family Court). To determine whether a party has been successful, the court should take into account how the order compares toany settlement offers that were made. See: Lawson v. Lawson (ON SC), [2008] O.J. No. 1978 (SCJ).

The positioneach party took at trial should also be examined. [6] Subrule 18 (14) of the rules reads as follows: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER 18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and fullrecovery 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. [7] The mother made an offer to settle. The father did not. [8] The mother’s offer to settle on the parenting issues closely mirrored the final result. The father was given 10 days access over theChristmas holidays, instead of the 7 days proposed by the mother.

The court also did not grant the mother’s request to travel outside ofCanada without the father’s consent. [9] The mother’s offer to settle on the financial issues was vague. She proposed that the father pay child support and

section 7expenses in accordance with his income, but did not set out what income she wanted his support assessed at. [10] The mother also offered to settle retroactive support in the amount of $27,497, payable in one year.

At trial, the parties agreed tofix arrears at $14,184, repayable at $250 per month. [11] The mother’s offer to settle was not severable. [12] The mother’s offer to settle was not more favourable than the final result. [13] The court may still consider the mother’s offer to settle pursuant to subrule 18 (16) of the rules. [14] At trial, the mother asked that the father’s annual income be imputed at $39,186. The father asked that his income be fixed at$29,300 per annum until November 1, 2015, as he was on paternity leave.

The father’s income was set at the level sought by the mother. [15] At the start of the trial, the father asked that his support arrears be fixed at $7,123. [16] The mother withdrew her claim for spousal support at the start of the trial. [17] The mother was the successful party on the dominant issues – the proposed move to British Columbia and the parentingschedule. She was the successful party on the issue of ongoing child support.

There was divided success on the issue of retroactivesupport. [18] The father was the successful party on the secondary issues of travel and spousal support. [19] The father did not rebut the presumption that the mother is entitled to costs. [20] In making this decision, the court considered the factors set out in subrule 24 (11) of the rules, which reads as follows: 24

(11) 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 or witnesses,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. [21] The case was very important for the parties. It was not difficult or complex. [22] Subrule 24 (5) of the rules addresses unreasonable behaviour. It reads as follows: DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (

a) the party’s behaviour in relation to the issues from the time they arose, including whether the party 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. [23] The mother acted unreasonably at the start of this litigation by taking the parties’ child to British Columbia without the father’sconsent or prior court order (as required by the existing court order). The court ordered her to return the child to Ontario. The mothercomplied with that order. [24] The father submits that the mother also acted unreasonably by serving her costs submissions after the May 13, 2016 deadline. Hesubmits that this disentitles her to costs.

It appears that the mother served (and filed) her submissions in time, but the submissions weresent to the father directly, not to her counsel. The father was given an extension of time to file his responding submissions. He sufferedno prejudice by service of the costs submissions in this manner. [25] The father did not make an offer to settle. He also did not advise the mother of significant increases in his income and failed topay her child support after October of 2013. This was unreasonable behaviour. [26] The rates and time claimed by counsel for the mother were very reasonable for a three-day trial.

The claim reflects sensitivity tothe father’s financial circumstances. [27] The court also considered that mobility cases are challenging for everyone involved. By their very nature, an approved move willusually compromise a parent’s relationship with his or her child. For this reason such cases are difficult to resolve and often need to bedecided by the court. It is understandable for parents to contest such requests. See: Bridgeman v. Balfour, 2009 CarswellOnt 7214 (Ont.SCJ). [28] The court considered the father’s ability to pay costs. See: MacDonald v. Magel (2003) (ON CA), 67 O.R.(3d) 181 (Ont.C.A.).

However, a party’s limited financial circumstances will not be used as a shield against any liability for costs but willbe taken into account regarding the quantum of costs. See: Snih v. Snih, (Ont. SCJ pars. 7-13). This order will permitthe father to pay the costs in instalments. [29] The court order provides that the father share in access costs. The court is concerned that a prohibitive costs order might deprivethe child with an opportunity of in-person contact with the father.

[30] The court has also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v Delellis and Delellis (ON SC), [2005] O.J. No.4345.

Both these cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote atparagraph 9: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize thetraditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and theoutcome.

The overall objective 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 successful litigant. [31] Taking into account all of these considerations, an order shall go that the father shall pay the mother’s costs fixed in the amountof $3,500, inclusive of fees, disbursements and H.S.T. [32] The father may repay the costs ordered at the rate of $100 per month, starting on July 1, 2016. Released: June 2, 2016 ________________________ Justice S.B. Sherr