Reid v. Pennant, 2015 ONCJ 460

COURT FILE NO. D72262/14 DATE: 2015-08-20 Citation: Reid v. Pennant , 2015 ONCJ 460 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) ASTON REID ) ) ) CHERRY ISAACS-REYNOLDS, for the APPLICANT ) APPLICANT ) ) - and - ) VELSIELYN PENNANT ) RESPONDENT ) ADELA CROSSLEY, for the RESPONDENT ) ) ) ) ) HEARD: AUGUST 19, 2015 JUSTICE S.B. SHERR COSTS ENDORSEMENT [ 1 ] The respondent (the mother) seeks costs of $6,780, arising out of three court appearances. The applicant (the father) opposes the mother’s request. [ 2 ] The father brought an urgent motion regarding access on March 2, 2015. His motion was dismissed. The issue of costs was

reserved. [3] The mother brought a travel motion returnable on July 21, 2015. The father consented to the relief requested on the return date.The parties were also able to resolve parenting issues on a final basis at a case conference held that day. The issue of costs was reserved. [4] The mother brought a motion for temporary child and spousal support that was heard on August 19, 2015. The father brought across-motion pleading undue hardship pursuant to

section 10 of the Child Support Guidelines (the guidelines). He also sought extensivefinancial disclosure from the mother. This motion was also heard on August 19, 2015. [5] The court dismissed the father’s claim for undue hardship. He was ordered to pay the mother temporary child support of $669per month. He was also ordered to pay the mother temporary spousal support of $150 per month. The court agreed with the mother’srequest to begin support as of January 1, 2015. It permitted the father to repay the arrears created by the order at the rate of $150 permonth.

The court ordered the mother to provide the father with financial disclosure, but not to the extent requested by him. Otherwise,the father’s motion was dismissed. [6] 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. [7] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates apresumption of costs in favour of the successful party.

Consideration of 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 beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson (ON SC), [2008] O.J.

No. 1978 (SCJ). [8] Subrule 18 (14) 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. [9] The mother made two offers to settle. The father did not make an offer to settle. [10] This court has often written that it will usually be unreasonable behaviour to fail to make an offer to settle. The court wrote inparagraphs 4-5 of Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774 , [2009] O.J. No. 6370 (OCL): 4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties.

It should be afundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justlyincludes taking steps to save time and expense (subrule 2(3)).

Offers to settle play an important role in saving time and expense in a case.They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute. 5 There are consequences in the rules for not making or accepting reasonable offers to settle. Subrule 18(14) sets out the costsconsequences of not accepting an offer to settle that is as good as or better than the final result. When determining the reasonableness of aparty's behaviour in the case, clauses 24(5)(

b) and (

c) of the rules direct the court to examine the reasonableness of any offer made,withdrawn or not accepted. This does not preclude the court from examining the failure of a party to make an offer to settle. [11] These comments apply equally to making offers to settle on contested motions. See: H.F. v. M.H., 2014 ONCA 86 ,[2014] O.J. No. 477 (OCJ). [12] The mother’s best offer did not meet the conditions under subrule 18 (14). She sought temporary spousal support of $400 permonth. Only $150 per month was ordered.

[13] The court has a discretion to take into account any written offer to settle, the date it was made and its terms, even if subrule18(14) does not apply, when exercising its discretion over costs. (subrule 18(16)). The mother’s offer regarding child support was thesame as the court order. The court agreed with her start date for support. She also made a reasonable proposal to settle the costs issue. [14] The father did not want to pay any spousal support and asked to significantly reduce his child support obligation. This was not areasonable position to take.

Family law litigants are responsible for and accountable for the positions they take in the litigation: See:Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141. [15] The mother was the successful party at each court appearance, although there was some divided success on the spousal supportissue at the last court appearance. The presumption that she is entitled to costs was not rebutted. [16] In making this decision, the court considered the factors set out in subrule 24 (11), 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. [17] The case was important for the parties. It was not complex or difficult. [18] The mother’s behaviour was reasonable in the case. The father delayed in providing financial disclosure to the mother. He hasnot paid any support since January 1, 2015. He should have consented to the mother’s travel motion without forcing her to bring amotion. He did not make an offer to settle. This behaviour was not reasonable. [19] The mother’s lawyer’s rates claimed are reasonable. [20] The time claimed by the mother’s lawyer was reasonable.

The court considered that the parties made good use of the July 21,2015 appearance and settled the parenting issues. It is not appropriate to order complete recovery costs for that appearance. [21] 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.). A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be takeninto account regarding the quantum of costs, particularly when they have engaged in unreasonable behaviour. See: Snih v. Snih, (Ont. SCJ pars. 7-13).

The father is a financial mess. He incurred significant support arrears with respect to his first familythat he is still repaying. He has an ongoing spousal support obligation to his ex-wife. He now owes support arrears in this case. However,this mess is mostly of his own making and due to his dereliction in meeting his support obligations. [22] The court 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. [23] Taking into account all of these considerations, an order shall go as follows:

a) The father shall pay the mother’s costs of the three court appearances fixed in the amount of $6,000, inclusive of fees,disbursements and H.S.T.

b) The father may repay these costs at the rate of $250 per month, starting on October 1, 2015. However, if he is more than 30 days

late in making any support, arrears or costs payment, the entire amount of costs remaining owing shall immediately become due and payable. ___________________________ Justice S.B. Sherr Released: August 20, 2015