Court File and Parties
Court File No.: Halton 217/10 Date: 2012-10-02 Ontario Court of Justice
Between: Ryan Carley, Applicant
— and —
Stephanie Chin and Alicia Abbatino, Respondents
Before: Justice Sheilagh O'Connell
Costs Endorsement
Counsel:
- J. Jeffrey Richey, for the Applicant
- Granville N. Cadogan, for the Respondent, Stephanie Chin
- No one appearing for the Respondent Alicia Abbatino
O'CONNELL J.:
INTRODUCTION
[1] On April 12, 2012, following a four day trial, I made a final order granting the Applicant Ryan Carley sole custody of the child, and granting specified access to the Respondent Stephanie Chin.
[2] I requested written submissions regarding costs. Mr. Richey, counsel for Mr. Carley filed written submissions on costs on May 7, 2012. Mr. Cadogan, counsel for Ms Chin, did not provide a response to Mr. Carley's costs submissions until September 11, 2012, more than five months later, despite a number of requests from the court. An initial request for an extension was granted and then finally a deadline of September 11, 2012 was imposed on Mr. Cadogan after receiving no response. Mr. Cadogan did not provide any explanation to the court for the very lengthy delay.
[3] Mr. Carley is seeking his costs on a full recovery basis in the amount of $29,912.50. Mr. Cadogan, on behalf of Ms Chin submits that no costs should be payable because Mr. Carley behaved unreasonably and the costs requested are excessive, unwarranted, and beyond Ms Chin's ability to pay.
BACKGROUND
[4] The main issue at trial concerned the custody of R.J. Carley-Abbatino, born […], 2010 (hereinafter referred to as "R.J."). This trial was somewhat unique in that neither biological parent was seeking custody of R.J. Mr. Carley is not the child's biological father, but he has acted as a parent to R.J. since the child's birth. Ms Chin is R.J.'s maternal Aunt. R.J.'S mother, Alicia Abbatino was not able to parent R.J. at the time of trial as a result of a very serious drug addiction. The child's biological father is unknown.
[5] At the time of trial, R.J. was 21 months old and had lived with Mr. Carley all of his life. R.J. is a biracial child and Ms Chin submitted at trial that Mr. Carley would not be able to foster R.J.'s black identity or heritage. She further submitted that R.J. should be with his blood relations and the extended family of his biological mother. Ms Abbatino supported Ms Chin's claim for custody but did not participate in the trial and did not make any submissions to the court.
[6] Six witnesses were called at trial, including the parties. In determining the issue of custody, the importance of biology, blood relationships and race were important considerations, in addition to all of the factors that a court must consider under the best interests determination in section 24 of the Children's Law Reform Act. For detailed written reasons, I concluded it was in R.J.'s best interests to remain in the custody of Mr. Carley.
THE LAW AND GENERAL PRINCIPLES
[7] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(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.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[8] Rule 24 (11) provides a further list of factors that a court must consider when setting the amount of costs:
(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.
O. Reg. 114/99, r. 24 (11).
[9] Rule 18(14) and 18 (16) of the Family Law Rules, which address the cost consequences of offers to settle, provide the following:
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 full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
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.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
18 (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
O. Reg. 114/99, r. 18 (14) and (16).
[10] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475, at paragraph 8, the Ontario Court of Appeal confirmed that costs rules 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 behaviour by litigants.
[11] Rule 24 created a new framework for determining costs in family law proceedings. The presumptive nature of Rule 24 has significantly curtailed the court's discretion regarding costs in family law proceedings and absent compelling circumstances or the exceptions set out in the rule itself, costs are generally awarded to the successful party. The Ontario Court of Appeal in C.A.M. v. D.M., 67 O.R. (3d) 181 held that while the Rules have not completely removed a judge's discretion, the Rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs. Courts must not only decide liability for costs, but also the amount of those costs.
[12] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in 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 CarswellOnt 2521 (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 particular proceedings rather than an exact measure of actual costs to the successful litigant.
[13] In Delellis v. Delellis and Delellis, [2005] O.J. No. 4345, 143 A.C.W.S. (3d) 235, 2005 CarswellOnt 4956 at paragraph 9, Justice David R. Aston states the following at paragraph 9:
"… recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, 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 overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant..."
ANALYSIS
[14] Mr. Carley was clearly the successful party. However, he is not entitled to costs on a substantial indemnity or full recovery basis. A party is not generally entitled to full recovery costs unless there has been bad faith under Rule 24 or Rule 18 applies. In this case, neither party exchanged offers to settle to trigger a substantial indemnity award. Further, there was no bad faith by either party. Both parties sincerely sought custody of R.J. because they believed it was in his best interests. The issue of custody was extremely important for both parties and in cannot be said that either party was unreasonable in advancing this position at trial.
[15] Mr. Cadogan's submission that Mr. Carley acted unreasonably in undertaking to give R.J. to Ms Chin and then 'subsequently changing his mind thereby necessitating a trial' is flatly rejected. The undisputed evidence at trial is that Ms Chin did not bring a temporary motion for custody of R.J. for more than eight months after the kinship assessment was completed by the Children's Aid Society in August of 2010. By that time, R.J had been in Mr Carley's care for the first 17 months of his life. He had developed a strong, emotional attachment or bond to Mr. Carley, whom he clearly viewed as his father. All of the evidence at trial indicated that R.J. is thriving in Mr. Carley's care and Mr. Carley clearly viewed R.J. as his son. Ms Chin sought five adjournments of her motion for custody of R.J. The case management judge, Justice Zisman, was not prepared to grant a further adjournment and wrote the following in her endorsement dated June 20, 2011, when she placed this matter on the trial list:
"Mr. Cadogan is not present and has requested ... a further adjournment of the motion for temporary custody. I am not prepared to grant this request.
Ms Chin was added a party on October 26, 2010 and granted access to the child Ryan John Carley-Abbatino. At that time, Ms Chin was requesting that the child be placed in her custody. A date was set for a temporary motion on the issue of custody for December 9, 2010. Ms Chin then advised Mr. Richey that she obtained counsel and that he was requesting an adjournment. Mr. Richey attended court and adjourned the motion. A new date was set for March 4, 2011. Again on March 4, 2011 the motion did not proceed as Mr. Cadogan advised Mr. Ritchie that he required a further adjournment. Mr. Ritchie again attended an adjourned the motion to April 8, 2011. On April 8, 2011, Mr. Cadogan advised Mr. Ritchie that he needed a further adjournment and the motion was adjourned to today. I am yet again advised by Mr. Ritchie that he was contacted by Mr. Cadogan this morning to request a further adjournment.
I am not prepared to grant a further adjournment. Ms Chin has had eight months to argue this motion-either she is not sincere in her desire for temporary custody or there is some other reason for her failure to pursue temporary custody. In any event, this child's future needs to be determined one way or another."
[16] This court is at a complete loss as to why Ms Chin took no steps to secure interim custody of R.J. for more than a year after she brought her application for custody and instead acquiesced to R.J. to remaining in Mr. Carley's care, including consenting to a temporary order for custody in August of 2011, only three months before the trial. It was clear by June of 2010, according to the evidence at trial, that Mr. Carley was already developing a strong attachment to R.J. and that he was seeking custody of him, even after he learned that he was not R.J.'s biological father.[1]
[17] Mr. Cadogan's further submits that that Mr. Carley should not be awarded costs because it was his behaviour that caused Ms Abbatino to go a "drug binge". He submits that Ms Abbatino's drug addiction and relapse were the result of Mr. Carley's violence towards her. This submission is completely contradicted by Ms Abbatino's own evidence and the evidence of other witnesses at trial. Ms Abbatino testified that she started using drugs as a teenager. She admitted that she had a history of abusing drugs prior to meeting Mr. Carley, including marijuana, crack and cocaine. She further admitted that she had a history of disappearing when she was using drugs, although she stated that this was only on weekends, and that her family was aware of her disappearances when she was using drugs.
Bill of Costs
[18] Mr. Jeffrey is a family law practitioner who was called to the bar in 1990 and has 22 years of family law experience. In the bill of costs submitted, his hourly rate is set at $375.00 per hour on a full indemnity scale. This is a reasonable rate for someone of Mr. Jeffrey's skill and experience. However, I have already determined that costs should be calculated on a partial indemnity basis for the reasons set out above.
[19] Partial indemnity costs have been defined at approximately sixty percent of the total costs. See Kimpton v. Ghoura, 2007 CarswellOnt 1927 (SCJ); Biant v. Sagoo, 2011 CarswellOnt 3315 (SCJ); Burke v. Burke, 2011 CarswellOnt 3051 (SCJ). Generally, partial indemnity costs should be the norm. See Patton-Casse v. Casse, 2011 CarswellOnt 7090 (SCJ); Blustein v. Kronby, 2010 ONSC 1718, 2010 CarswellOnt 1985 (SCJ).
[20] A partial indemnity award in this case would therefore be approximately $17,000.00, assuming that I accept that all of the time spent for this trial was reasonable.
[21] Mr. Jeffrey's Bill of Costs only includes the time spent after December of 2011 when the trial commenced. The bill of costs totals 69.1 hours for witness and trial preparation, attendance at trial, case law review, review of reasons for judgment and preparation of costs submissions.
[22] In this case, having regard to clause 24 (11) (a) of the Rules, the sole issue for trial was complicated by a unique set of circumstances and facts and the issue at stake was clearly of paramount importance to both parties. The trial preparation costs claimed by Mr. Richey are not excessive given the issue at stake and the outcome achieved at trial. As Justice Aston stated at paragraph nine in Delellis v. Delellis and Delellis, supra, costs must be proportional to the outcome. The overall objective is to fix an amount that is fair and reasonable. Having said that, there is no explanation or detail regarding the 39 hours billed for trial attendance and preparation, given that the trial time was approximately 24 hours, and the further entry of 14.5 hours for trial preparation as well. There appeared to be some double-counting in the trial preparation, as no detail or clarification was provided in the bill of costs submitted.
Ability to Pay
[23] In deciding the amount of costs to be paid, I must also consider clause 24 (11) (f) which requires the court to consider any other relevant matter, including the ability to pay costs. See Biant v. Sagoo, 20 R.F.L. (5th) 284, [2001] O.J. No. 3693. A party's limited financial circumstances will not be used as a shield against any liability for costs but must be taken into account in determining the amount of costs. In C.A.M. v. D.M., 67 O.R. (3d) 181, Justice Rosenberg for the Ontario Court of Appeal states the following:
"I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account "any other relevant matter". I agree with Aston J. in Sims-Howarth at para. 4, that the " Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs". In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan, [2002] O.J. No. 4743 (S.C.J.) at para. 11."
[24] In this case, Ms Chin is not the custodial parent however, she is a person of modest means and limited financial circumstances. She is a college educated medical clerk and has been employed as a medical clerk with the emergency department at the North York General Hospital since 2006. She lives alone and has no children. Unlike the authority relied upon by Mr. Cadogan in his costs submissions,[2] Ms Chin is not paying any child support to Mr. Carley nor did Mr. Carley seek child support from her at trial. Further in the case relied upon by counsel, the trial judge also found that success was divided between the parties, which was clearly not the case here.
[25] In my view, in considering all of the circumstances of this case, including the importance of the issue of custody for both parties and Ms Chin's ability to pay, a cost award of $10,000.00 is appropriate and reasonable.
ORDER
[26] Ms Chin shall pay Mr. Carley's costs fixed at $10,000.00, inclusive of fees, disbursements and taxes, payable within 30 days from the date of this order, or at rate of $225.00 per month, commencing December 1, 2012.
Released: October 2, 2012
Signed: "Justice Sheilagh O'Connell"
Footnotes
[1] Until June of 2010, Mr. Carley believed that he was R.J.'s biological father. A paternity test in June of 2010 confirmed otherwise.