Price v. Reid, 2013 ONCJ 442

COURT FILE NO. D60024/13 DATE: 2013-08-13 Citation: Price v. Reid, 2013 ONCJ 442 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) MACKENZIE PRICE ) ) ) ELENA E. MAZINANI, for theAPPLICANT ) APPLICANT ) ) - and - ) ) OWEN HEZEKIAH REID RESPONDENT ) RYAN GILLISSE, for the RESPONDENT, ) ) ) ) )HEARD: IN CHAMBERS JUSTICE S.B.

SHERR COSTS ENDORSEMENT [1] On July 10, 2013 I released my trial decision fixing the respondent’s (the father) income at $43,935 per annum for the purpose ofcalculating child support, adjusted his support obligations as of January 1, 2010 and fixed support arrears at $18,989. [2] This was a one-day trial. [3] The mother made written costs submissions. She seeks her full recovery costs of $4,542.60. The father also made written costssubmissions. He submits that costs should be fixed at $1,800, repayable at $50 per month. [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, to

encourage 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). [6] Subrule 18 (4) of the rules sets out that an offer shall be signed personally by the party making it and also by the party's lawyer. [7] 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 hearingdate. 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. [8] The mother made an offer to settle that complied with all of the pre-conditions set out in subrule 18 (14) of the rules.

She offeredto fix the father’s income at $40,000 per annum for the purpose of calculating child support and to adjust support as of January 1, 2010.She also offered to fix support arrears at $17,545. [9] In making this decision, I considered the factors set out in sub-rule 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. [10] The case was important for the parties. It was not complex, but was made more difficult by the father’s failure to provide timelyor accurate financial disclosure. [11] The mother acted reasonably throughout the case. The father did not act reasonably due to his failure to provide timely oraccurate financial disclosure or make an offer to settle. [12] The rates claimed by the mother’s lawyer ($100 per hour) are very reasonable.

[13] Subrule 24(10) sets out that costs are to be determined in a

summary manner after each step 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 case conference, settlement conference and the like. See:Husein v. Chatoor 2005 ONCJ 487 , [2005] O.J. No. 5715 (OCJ). The trial judge should not deal with requests for costs thatwere addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman 2007 ONCA 622. [14] The mother claimed time spent preparing for and attending at two case conferences. At one of these conferences she wasawarded costs of $750.

These are prior steps in the case and the mother will not be awarded costs for this work. [15] The mother did not differentiate in her bill of costs the time spent on the parenting issues (now resolved) from the time spent onthe support issues. She is only entitled to the latter costs.

The court recognizes that the support issues were the most contentious in thiscase and most of counsel’s time would have been attributable to them. [16] The mother is entitled to claim time spent for meetings with the client and reviewing and preparing pleadings and financialstatements as this is time not attributable to any one step in the case. See: Czirjak v. Iskandar, 2010 ONSC 3778 . [17] The mother claimed disbursements of $1,006.83 but did not provide much detail about these expenses or demonstrate whatportion was attributable to the support issues. [18] I have also considered both Boucher et al. v.

Public Accountants Council for the Province of Ontario (ONCA), [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v Delellis and Delellis (ON SC), [2005] O.J. No. 4345. Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 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. [19] I considered the respondent’s ability to pay the costs order. See: MacDonald v. Magel (2003) (ON CA), 67O.R. (3d) 181 (Ont.C.A.).

A party’s limited financial circumstances will not be used as a shield against any liability for costs but will betaken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their ownmisfortune. See: Snih v. Snih, (Ont. SCJ pars. 7-13). In the case of Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.) thecourt found that the respondent’s lack of income and assets, though a relevant consideration, could not be used as a shield in unnecessarylitigation.

I find that with a reasonable repayment plan, the father is able to pay the costs that will be awarded. [20] Taking into account all of these considerations, I see no basis to deviate from the presumption in subrule 18 (14) of the rules thatthe mother should be entitled to her partial indemnity costs up until June 27, 2013 (when she served her offer to settle), and full recoverycosts after that date.

The father should have accepted the mother’s offer to settle. [21] The mother will be awarded partial indemnity cost of $1,000 up until June 27, 2013, $1,500 full recovery costs after June 27,2013, $500 for disbursements and $390 for HST, for a total costs award of $3,390. [22] The father may repay the costs at the rate of $150 per month, starting on October 1, 2013. ___________________________ Justice S.B. Sherr Released: August 13, 2013