Bergen v Sharpe, 2013 CanLII 74188 (ON SCDC)

Court File and Parties

COURT FILE NO.: DC-10-79-00 (Brampton)

DATE: 2013-11-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JESSICA ANNE BERGEN

Self-represented

Applicant (Respondent in Motion)

• and -

ROBERT JOHN SHARPE

Dawn Bourque, for the Respondent/Appellant

Respondent (Appellant in Motion)

Price J.

Costs Endorsement

NATURE OF PROCEEDING

1After Mr. Sharpe and Ms. Bergen separated, Mr. Sharpe made false allegations that Ms. Bergen was mentally ill and that her partner was a dangerous criminal involved in the sex industry. He thereby obtained a temporary Order from this court granting him custody of the parties’ young son, Johnathan. At a hearing on October 7, 2010, Ms. Bergen disproved Mr. Sharpe’s allegations and obtained an Order from Snowie J. substituting an Order granting the parties joint custody and equal parenting of Johnathan on a week-about schedule. Mr. Sharpe applied unsuccessfully for leave to appeal to the Divisional Court from Snowie J.’s Order. After his motion was dismissed, the parties were unable to agree on costs.

2Ms. Bergen, who was self-represented in the motion, seeks her costs in an amount that is roughly equivalent to the amount Mr. Sharpe, who was represented, paid to his own lawyer. Mr. Sharpe argues that Ms. Bergen chose not to be represented by a lawyer and should not be compensated for the time she spent representing herself.

3This was a motion that should not have been brought. Ms. Bergen was successful in opposing it and should be fully compensated for the costs she incurred. As she was self-represented, her costs cannot be assessed based on a lawyer’s Costs Outline or with reference to amounts she paid to lawyers who represented her. It was she who performed the work normally performed by a lawyer.

4The costs awards in other motions for leave to appeal, especially those involving appeals from temporary orders made in family law cases, together with the amount that Mr. Sharpe was charged by his own lawyer, provide the best basis for determining the costs that Mr. Sharpe could reasonably have expected if he was unsuccessful in his motion.

5Ms. Bergen presented her case efficiently and as well as most lawyers would have done. She did not engage in misconduct or add unnecessarily to the time required for the hearing. There is no reason why she should not be awarded costs on the same scale and in a similar manner and amount as if she had been represented by counsel. Having regard to the rate of $300.00 that Mr. Sharpe’s lawyer was entitled to claim on a partial indemnity scale, I am satisfied that the $200.00 that Ms. Bergen has claimed is a reasonable rate to apply, on a full indemnity scale, after making allowance for the amount she could have earned for the time she spent, including the time she would have spent in court in any event, as a litigant whose case was being heard.

6Based on my consideration of the factors set out in rule 24(11) of the Family Law Rules¹ (“FLR”), I conclude that requiring Mr. Sharpe to pay Ms. Bergen’s costs in the amount of $12,091.85 would best achieve the objectives of indemnifying Ms. Bergen for the costs of opposing the motion, and discouraging Mr. Sharpe and others from initiating unnecessary and unmeritorious proceedings, and preserving an environment in which litigants who need to advance or defend their rights can have access to the courts to do so, without being disadvantaged by financial inequality.

BACKGROUND FACTS

7After Mr. Sharpe and Ms. Bergen separated in May 2008, Mr. Sharpe obtained an Order from Belleghem J. dated September 23, 2008, granting him sole temporary custody of the parties’ then four-year-old son, Johnathan. He obtained the Order by alleging, among other things, that Ms. Bergen was mentally ill and that her partner was a dangerous criminal involved in the sex industry.

8Snowie J. found, on October 7, 2010, based on new evidence, that Mr. Sharpe’s allegations were false. She substituted an Order for joint custody of Johnathan and for equal parenting of Johnathan on a week-about basis. Mr. Sharpe sought leave to appeal to the Divisional Court from Snowie J.’s decision, arguing that the evidence she had relied on did not amount to a material change in circumstances that justified changing the status quo.

9Mr. Sharpe further argued that Snowie J. should not have ordered him to pay child support, as she had presided three months earlier at a Settlement Conference where, he said, financial issues (spousal support and equalization) were discussed. In fact, Snowie J. adjourned the conference when it became evident that Mr. Sharpe had not yet delivered his answer to Ms. Bergen’s application for support or arranged a psychiatric assessment of Ms. Bergen that he insisted that she undergo.

10When Ms. Bergen proved that Snowie J. had adjourned the conference, Mr. Sharpe argued that, before doing so, she had asked him about the value of his farm, and that this should have disqualified her from fixing the amount of his child support which he submitted was based, in part, on the value of the farm. I rejected this argument on the ground that the value of the farm had no significant bearing on the Order for temporary child support.

11Mr. Sharpe was represented by counsel in his motion for leave to appeal. Ms. Bergen represented herself. Mr. Bergen’s motion was dismissed, based on my finding that the evidence disproving Mr. Sharpe’s false allegations was a material change, as the true facts, had they been known at the time of the initial hearing, would likely have resulted in a different outcome. I further found that Snowie J. had not, in fact, embarked on a Settlement Conference, but had adjourned the conference to another day.

ISSUES

12Mr. Sharpe acknowledges that Ms. Bergen was successful in opposing his motion, and is entitled to her costs. Accordingly, the only issue that now needs to be determined is the amount of costs that Ms. Bergen is entitled to be paid.

POSITIONS OF THE PARTIES

13Ms. Bergen claims her costs on a substantial indemnity scale, under rules 18(16) and 24(1), (8), (11) of the FLR and s. 131 of the Courts of Justice Act.² She argues that she was successful in opposing the motion, and that Mr. Sharpe lengthened the hearing unnecessarily by falsely asserting that Snowie J. had assumed continuing judicial control of the Settlement Conference, and refused to fix a date for its continuation when, in fact, she had adjourned the conference to February 28, 2011.

14Ms. Bergen submits that she spent an extraordinary amount of time on the motion and asks that this time be valued at $15,770, at an hourly rate of $200 per hour. She relies on my decision in Jahn-Cartwright v. Cartwright, (2010), in which I awarded a self-represented litigant costs based, in part, on applying that hourly rate to the time spent.³

15Mr. Sharpe argues that Ms. Bergen should be awarded only $750 for her costs. He says that she chose to represent herself and should be compensated only for the expenses she incurred and not for her time. He argues, moreover, that the amount that Ms. Bergen claims is unreasonable, exceeding even the fees that Mr. Sharpe’s own lawyer charged him, and that the principles set out in the Jahn-Cartwright case should be limited in their application to the facts of that case.

ANALYSIS AND EVIDENCE

16An appropriate costs order balances two conflicting principles, namely, that:

1. A blameless litigant who is successful in a proceeding should not be required to bear the costs of prosecuting or defending the proceeding.

2. Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all the costs of their opponent.

The Supreme Court of Canada has held that the ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.⁴

The Discretion to be Exercised

17The entitlement to costs and the amount to be paid are “within the court’s discretion.”⁵ The court must exercise its discretion with due regard to the objectives of costs awards, and to rule 24(11) of the FLR which sets out the factors that are relevant to how the objectives are best attained in the circumstances of a particular case.

The Objectives to be Served

18Historically, the court’s paramount consideration when awarding costs was indemnifying the successful party. More recently, the Supreme Court of Canada has stated that costs orders serve broader objectives in the administration of justice, including penalizing a party who has refused a reasonable settlement offer, and sanctioning unreasonable behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious: “In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.”⁶

19The Court of Appeal for Ontario in 1465778 Ontario Inc. v. 1122077 Ontario Ltd., held that the courts, in awarding costs, should also consider a further objective, in the need to preserve access to justice.⁷ While historically, courts reserved costs awards exclusively to litigants who were represented by lawyers, and tied the amounts of costs awards to the fees paid to the lawyers, courts more recently have recognized that allowing self-represented litigants to recover costs helps attain the broader objectives of costs awards and advances access to justice.

20In Fong et al. v. Chan et al.,⁸ the Court of Appeal for Ontario, approved MacDonald J.’s recognition of the multiple objectives of costs awards in Fellowes, McNeil v. Kansa General International Insurance Co⁹ and affirmed the right of a self-represented lawyer to recover costs, including a counsel fee, in his own case.¹⁰ As MacDonald J. noted in Fellowes: “A party with counsel, opposite an unrepresented litigant, should also be deterred from the notion that it is immune from a costs award merely because such opposite party is unrepresented.”

Factors to be Considered

28Rule 24(11) of the FLR lists the factors the court should consider when quantifying costs:

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.

Importance, Complexity, and Difficulty

21Mr. Sharpe acknowledges that his motion was important to him and to Ms. Bergen. He states: “The importance of this matter to Mr. Sharpe and, presumably, to Ms. Bergen, was crucial. At issue was the temporary custody arrangement that could remain in place until trial.” Ms. Bergen states: “There could be no more important issue in a civil divorce matter than the best interests of a minor child.”

22Ms. Bergen characterizes Mr. Sharpe’s motion as a “long and very complicated proceeding at the Divisional Court level.” My earlier reasons, which comprise 38 pages, detail the factual determinations that were required. While the legal issues were not especially complex, the history of the proceeding, which included seven orders of this court,¹¹ reports from several experts,¹² multiple allegations that Mr. Sharpe made, and the disproof of each of them, made the motion moderately complex.

Reasonableness of Each Party’s Behaviour – Scale of Costs

23Rule 24(4) of the FLR provides that: “Despite subrule (1) (providing that a successful party is presumed to be entitled to costs), 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” (emphasis added).

24I find that Mr. Sharpe behaved unreasonably by persisting in his allegation of Ms. Bergen’s mental unfitness beyond the point when the medical evidence should have convinced him otherwise and by continuing to press the issue of Snowie J.’s disqualification without carefully reviewing the record of proceedings and, in particular, Snowie J.’s endorsement dated June 14, 2011.

25Rule 24(5) of the FLR provides:

24. (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.

26While costs are designed primarily to indemnify the successful litigant and not to punish the unsuccessful party, sanctioning unreasonable behavior is nevertheless a recognized objective of a costs order. Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectations. However, unreasonable behavior may, in appropriate circumstances, result in an award of costs on a higher scale.

27In Perri v. Thind et al.,¹³ Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. In doing so, he stated that costs orders are not designed mainly to be a punishment. In that case, however, the motion judge had awarded costs four times greater than the successful litigant’s substantial indemnity costs. Henderson J. himself noted that costs, when awarded on a substantial indemnity scale, can serve to express the court’s disapproval of unreasonable conduct.¹⁴

28Not every instance of unreasonable conduct attracts an order that costs be paid on a substantial indemnity scale. Substantial indemnity costs, like their predecessor, solicitor and client costs, are exceptional. Mark M. Orkin, in The Law of Costs,¹⁵ cites the Supreme Court of Canada in Young v. Young, in this regard: “Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.”¹⁶

29In Empire Life Insurance Co. v. Krystal Holdings Inc., Archibald J. stated: “Substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct … or where a motion has been brought unreasonably”¹⁷ (emphasis added.)

30It was patently unreasonable for Mr. Sharpe to seek leave to appeal from Snowie J.’s order. Family law litigants are responsible for and accountable for the positions they take in the litigation,¹⁸ and Mr. Sharpe’s motion compounded the unreasonableness of the false allegations he had made previously concerning Ms. Bergen and her partner.

31A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the FLR: Osmar v. Osmar.¹⁹ A finding that the motion should not have been brought is sufficient to attract costs on this higher scale.

32An award of costs on a substantial indemnity scale is especially warranted in this case, which is governed by the FLR as distinct from the Rules of Civil Procedure, R.R.O. 1990, Reg 194. Under the FLR, the traditional assumption that there are only two levels of costs (“party-and-party”/“solicitor-and-client”; or “partial indemnity”/“substantial indemnity”) no longer applies. The court is simply required to consider the range between a nominal amount of costs and full recovery.²⁰In a family law case, the court need not find “special circumstances” before ordering costs on a substantial or full indemnity scale.²¹ Within this range, Mr. Sharpe’s unreasonable conduct attracts costs on a substantial indemnity scale.

33This was not a case in which Ms. Bergen could reasonably have made an offer to settle that would have offered the prospect of avoiding a hearing of the motion. Snowie J., after finding that Mr. Sharpe’s allegations had been false, did not substitute an order giving Ms. Bergen sole custody of Johnathan, but one that gave the parties joint custody, with equal parenting time. In light of the order made, there was no onus on Ms. Bergen to offer a resolution of the issues on more favourable terms than were contained in the order itself.

The Lawyer’s Rates

34Rule 24(11) of the FLR directs me to consider “the lawyer’s rates” when quantifying Ms. Bergen’s costs. Mr. Sharpe was the only party who was represented by a lawyer. His lawyer, William Abbott, was called to the Ontario Bar in 1995 and had been practicing law for 15 years when the present motion was argued.

35The “Information for the Profession Bulletin”, from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”),²² suggests a maximum hourly rate (on a partial indemnity scale) of $300 for lawyers having between 10 and 20 years of experience. The maximum rates stated are generally intended for the most complex and important of cases.

36Ms. Bergen asks the court to value the time she spent on her case at $200 per hour. She relies on my decision in Jahn-Cartwright in this regard. In that case, I awarded costs in the amount of $9,038 plus HST and disbursements to the self-represented wife. This amount was based, in part, on my finding that her time should be valued, on a substantial indemnity scale, at an hourly rate of $200.

37The hourly rate I ascribed to Ms. Cartwright was high compared to rates that had been ascribed to self-represented litigants in previous cases. It can be compared to the result in Blustein v. Kronby, where Belobaba J. applied the “now-accepted rate of $60 per hour for self-represented litigants,”²³ and McDonald v. Goary,²⁴where Wein J. applied the rate of $60.

38In Jahn-Cartwright, I reviewed the jurisprudence that, up to that point, had addressed the entitlement of self-represented litigants to costs. The hourly rate I applied was derived from the findings I made, and has rightly been approached with due attention to the distinguishing facts in that case.

39Mr. Cartwright, who was represented by a lawyer, appealed from both the substantive order and the costs order made in that case. The parties settled the appeal by agreeing to set aside my order and restore an earlier order made in the proceeding. As a result, my decision awarding Ms. Cartwright her costs did not receive appellate consideration.²⁵ I adopt the principles set out in Jahn-Cartwright, with the exception of my exclusion of time claimed for a conference, which I reconsidered in Kaverimanian v. Kaverimanian,²⁶and in Friday v. Friday.²⁷ The present case affords an opportunity to elaborate further on the principles involved in Jahn-Cartwright in a different factual context, in valuing the time that Ms. Bergen spent opposing Mr. Sharpe’s motion.

40In Jahn-Cartwright, I considered the factors set out in rule 24(11) of the FLR, including “the lawyer’s rates.” The only lawyer involved in that proceeding was the one who had represented Mr. Cartwright. The expression “the lawyer’s rates” as used in rule 24(11) could be interpreted to mean: “The rates of the lawyer, if any, who represented the successful party.” However, the Rule could easily have been drafted to say that, and was not. Therefore, in a case where the successful litigant is self-represented, I interpret the expression to mean: “the rates charged by lawyers, if any, representing other parties in the case.”

41The Costs Bulletin suggested a partial indemnity hourly rate of $350 for Mr. Cartwright’s lawyer. I considered that rate to be a factor in determining what his reasonable expectation was regarding the costs he might face if unsuccessful in the motion. I stated:

Where one party in a proceeding is represented by a lawyer and the other is not, the hourly rate that the represented litigant’s lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, the litigant who is represented by a lawyer would be less circumspect with regard to his or her conduct of the proceeding and his or her response to the opposing party’s efforts to settle because that party is a self-represented litigant.²⁸

42It is evident from the costs endorsements in the past decade and a half, since the Court of Appeal in Fong recognized the entitlement of self-represented litigants to recover costs for their time, that courts have struggled with the issue of what weight to give opposing lawyers’ hourly rates, or lawyers’ hourly rates in general, when determining the costs of a successful self-represented litigant. The Court of Appeal for British Columbia in Skidmore v. Blackmore, stated: “The only justification found in the case law for denying costs to a successful self-represented lay litigant is because of the difficulty in valuing the efforts of that person in preparing the case.”²⁹

43Many judges, faced with the task, have invoked Macdonald J.’s assertion in Fellowes that:

The difficulty in the valuing of the time and effort of the lay litigant is not a good reason to decline to value it, particularly in the case of a barrister acting on his own or representing himself and his firm. It should not be a daunting exercise. Our courts, in fixing costs, are apprised of applicable hourly rates and other considerations that are taken into account in the fixing of costs referable either to the party-and-party scale or the solicitor-and-client scale.³⁰

44Rule 24(11) of the FLR includes “the lawyer’s rates” among the factors to be considered when assessing costs. The Rule provides no comparable reference point for use when valuing the time of a self-represented litigant. This creates an imbalance that does not reflect the increasingly prominent role that self-represented litigants are playing in the courts, especially in family law proceedings.

45The difficulty that this imbalance creates for judges when assessing the costs of a self-represented litigant is evident in the costs endorsement in Jordan v. Stewart. There, Czutrin J. observed the following:

We ask lawyers to provide to us a Bill of Costs and a breakdown of hours spent and hourly rates that, while varying widely, is based on experience and to some degree reputation, market place. They are officers of the court when submitting Bills of Costs and costs outlines. In this case, the father’s counsel presented the hourly rates of three lawyers and a law clerk. The lawyers assisting the mother also presented Bills of Costs.

It is near impossible to come up with an objective way of fixing an in-person party’s hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer’s work. We have yet to require in-person parties to somehow docket their time and provide satisfactory and reliable evidence as to what work they did equivalent to counsel work.

While different lawyers possess a wide range of skills, efficiency, and ability to focus, the range is far wider for in-person parties dealing with their own case. There are also many reasons for why they are without counsel. The costs must exclude the usual hours that any party might spend doing personal research, instructing counsel, and speaking with counsel. I am not sure how we can use hourly rates to measure a costs claim for the in-person’s time absent some requirement that in-person litigants keep dockets and certify their work on the case. Even then, it is a questionable method as there are various skill levels and the in-person may be too close to the issues to focus on what is relevant and necessary for the court to assist in resolution or adjudication.³¹ [Emphasis added.]

46In Jahn-Cartwright, I posed a number of questions arising in relation to “the lawyer’s rates” factor mentioned in rule 24(11) of the FLR:

If an hourly rate is to be applied, to what extent and in what ways should the rate reflect hourly rates of lawyers, including the lawyer who represents the other party in the same case, and to what extent and in what ways should it reflect the hourly income that the litigant is able to earn outside court, or the income that the litigant has foregone by doing the work of a lawyer or would have foregone, in any event, by reason of attending court as a litigant?³²

47Based on the Costs Bulletin and Mr. Abbott’s experience, I find that Mr. Abbott’s partial indemnity rate of $300 per hour should reasonably have informed Mr. Sharpe’s expectation of the costs he would pay if unsuccessful in his motion for leave to appeal. There are other factors that the court must consider. In Jahn-Cartwright, I noted:

It does not follow automatically from the fact that Mr. Cartwright’s lawyer is entitled to claim $350.00 per hour for her time that Ms. Cartwright is necessarily entitled to claim the same rate for the time she spent.³³

48The court must consider the nature of the work that the self-represented litigant performed in the case, how well it was performed, the context in which it was performed, and the objectives that a costs order serves for the administration of justice. Ms. Bergan’s time should not be disregarded or devalued simply because she was self-represented. In Jahn-Cartwright, I noted:

[A] party with counsel, opposite a self-represented litigant, should . . . be deterred from the notion that he will face only nominal costs because the opposing party is not represented by a lawyer.³⁴

49In order for costs orders to serve the objective of preserving access to justice in cases involving self-represented litigants, the court must value the time of such litigants by reference to the quality of the output, without either over-valuing it or discounting it based on who has performed the work. The interpretation of the Rules continues to evolve to reflect the growing prevalence of self-represented litigants, and must not translate the shortcomings of self-representation in general into inadequate costs awards for individual self-represented litigants who conduct themselves reasonably and efficiently.

50The rising numbers of self-represented litigants are noted in the National Self-Represented Litigants Project (“SRL Report”)³⁵ The author, Dr. Julie Macfarlane, r reports, based on figures made available to her by the Ministry of the Attorney General for Ontario, that self-represented litigants account for between 64 per cent and 74 per cent of litigants in family law cases:

Figures from Ontario show that throughout the whole province in 2011/12, 64% of individuals involved in applications under either the Family Law Act, the Children’s Law Reform Act or the Divorce Act were self-represented at the time of filing. In two of Toronto’s busy downtown courthouses, Jarvis Avenue and Sheppard Avenue, the figures were 73% and 74% respectively. These numbers are likely to be an under-estimate since both the SRL sample and court staff attested to the significant number of individuals who begin the legal process with a lawyer, but then become self-represented after expending all their resources and/or becoming dissatisfied with their legal counsel.³⁶ [Emphasis added.]

51The court and legal profession, as well as the public and most litigants, recognize the challenge that self-representation presents. Besides lacking knowledge of the evidentiary and procedural rules, and of the substantive law governing their cases, self-represented litigants often lack the detachment needed to manage and settle their cases wisely. The Court of Appeal alluded to this in Fong,³⁷ and Zuker J. discussed it more fully in Powers v. Powers.³⁸

52Self-represented lay litigants are also not bound by the rules of professional conduct or by the strictures applying to “officers of the court.” Judges presiding at hearings where one party is represented and the other is not must constantly reconcile the expectations designed for legal professionals with the limited ability that self-represented litigant may have to meet them. See my comments in Children’s Aid Society of the Region of Peel v. S.J.,³⁹ and Eberhard J.’s discussion of them in Balliu v. Balliu.⁴⁰

53It would be desirable if all those performing work in legal proceedings were fully qualified to do so. However, economic conditions have transformed the way legal services are delivered, incorporating paralegals with different training and skills than lawyers, and incorporating greater numbers of litigants representing themselves and availing themselves of “unbundled” legal services.

54Many self-represented litigants undertake that role out of economic necessity. Public resources are not available to an extent that ensures that everyone appearing in a family law proceeding has access to legal representation.⁴¹

55Many litigants, especially those undergoing the financial stress of separation, lack the financial resources, private or public, to retain legal counsel to help them. The SRL Project reports: “Almost every respondent (more than 90% of the sample) – across all three provinces and whether in family or civil court – referred in some way to financial reasons for representing themselves.”⁴²

56Nicholas Bala and Rachel Birnbaum report lower, but still substantial numbers in a recent survey of self-represented litigants in family proceedings in Ontario. They report that 49 per cent of survey respondents stated that financial considerations were the primary factor in their decision to represent themselves.⁴³ Anne-Marie Langan reports that 83 per cent of the unrepresented lawyers in Kingston family court reported that they were unable to afford lawyers.⁴⁴

57The SRL Project’s research data, based on interviews with numerous self-represented litigants, demonstrates that self-represented litigants often work very hard at preparing their cases, spending long hours in libraries, at their home computers, and standing in line at the court office. The research data also discloses that self-represented litigants endure significant sacrifices, some giving up or losing jobs, as a result of the time and energy they put into their cases. They have to take time off work to attend court and sometimes suffer recrimination or dismissal from their employers for doing so. The stress from their cases affects their work life. Others who are without work say that they do not have the time now to look for work because of the time that their case requires. This dilemma is common, the researchers found, if a litigant is fighting for custody or access to their children and is unfamiliar with the legal system and representing him/herself. They become preoccupied with their case and suffer the natural consequences of doing so.

58A self-represented litigant’s time will generally not be valued at the same hourly rate as a lawyer. Such litigants have not been trained as lawyers, with the education costs that such training entails. That said, some self-represented litigants are extremely resourceful, make judicious use of duty counsel, law libraries, online legal databases such as, the Ministry of the Attorney General websites, and use “unbundled” legal services available from lawyers and paralegals who are prepared to offer piecemeal legal assistance without being formally retained to represent the litigant in the proceeding. In such cases, the value of the time that the self-represented litigant has expended, evident in the quality of their pleadings, facta, and briefs of authority, and in the oral argument they make, within the narrow confines of their own case, may approach or even exceed the standards of a legal professional.

59In Jordan, Czutrin J. noted:

Lawyers and the Law Society of Upper Canada now recognize limited scope retainers or unbundled legal fees as one way to attempt to address access to justice and legal representation. Consistent with this need, courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.⁴⁵

60It is a temptation, where a self-represented litigant uses unbundled legal services, to regard such services as a substitute for representation, and to decline compensation for the additional time the self-represented litigant spends in the conduct of his/her case, beyond the time that any litigant would spend in court while their case is being heard.

61Czutrin J. concluded, in Jordan, that the applicant father, who was represented by counsel and expended $400,000 on his motion to terminate support, should pay the respondent mother her costs in the amount of $90,000, to compensate her for the amounts she spent for unbundled legal services, but not to compensate her for her own time that she spent successfully resisting her husband’s motion. In coming to this result, Czutrin J. considered the following facts, among others:

(a) The amount the father had expended for legal and expert services was disproportionate and unreasonable, which made his costs an unsuitable measure of what amount would be proportionate and reasonable if awarded to the mother.

(b) Czutrin J. was awarding the mother a substantial amount to compensate her fully for the unbundled legal services she had secured, even though far less than the amount the father had expended.

(c) The mother had not provided evidence comparable to what Czutrin J. would have expected from a lawyer to document the time she spent, in excess of the amount that any litigant would have to spend on her case, which is not subject to compensation.⁴⁶

(d) The mother had failed to meet the standard that would be expected from a lawyer.

62Czutrin J. concluded:

It is consistent with the objectives of the Family Law Rules, the overall notions of fairness, reasonableness, access to justice, and proportionality that the starting point must be full indemnity for the mother’s legal fees. As I have stated, I am not satisfied that, to determine the mother’s time as an element of costs, using any calculation method proposed by her would be fair, reasonable, or supported by her material.

The mother should recover sufficient costs to pay the lawyers she retained and a portion of her own expenses less a reduction for costs thrown away.⁴⁷ [Emphasis added.]

63Similarly, in Wunsch v. Wunsch, Czutrin J. stated:

In order to recover lost income, an in-person party must provide credible evidence that she lost income to do the work a lawyer would have otherwise performed and the work could not have reasonably been completed without that loss of income. She cannot recover lost income because she chose to work on the case instead of doing her paid job or self-employment.

I have no satisfactory method to determine what, if any, work done by the Respondent was above and beyond what any represented party may have done. Absent a Bill of Costs or a method to sufficiently establish time spent, the reasonableness of the time spent, and the amount claimed, I do not allow the Respondent’s claimed amount.⁴⁸ [Emphasis added.]

64Costs outlines from providers of unbundled legal services offer the comfort of legitimacy of certification by lawyers and “officers of the court,” but relying exclusively on them and disallowing any time not contained in them, fails to recognize the task faced by self-represented litigants and the economic reality that deprives such litigants of the full legal resources they require. Doing so also fails to adhere to the Court of Appeal’s decision in Boucher v. Public Accountants Council for the Province of Ontario,⁴⁹ which directs courts to assess costs by reference to the issues at stake and the reasonable expectations of the parties, and not by a mechanical calculation, applying hourly rates to time spent.

65In Delellis v. Delellis and Delellis, Aston J. correctly observed, based on the reasoning of Boucher:

However, 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.⁵⁰

66Adjusting the range of costs established by awards in similar proceedings, to take account of any inadequacy of a litigant’s drafting, argument, or settlement efforts, and the unnecessary time that such shortcomings cause, guides the court to an appropriate award of costs in any particular case. This is so whether or not the litigant is represented by a lawyer. In Warsh v. Warsh, Lauwers J., reduced the hourly rate ascribed to the successful self-represented mother from her claim of $150 to $30, based on the quality of work performed. He stated: “There is no doubt that Ms. Warsh worked hard to pull things together as best she could, but what she did provide was a somewhat disorganized bank of documents, only some of which were helpful.”⁵¹

67Where a self-represented litigant presents his/her case as well as a lawyer would be expected to do, and in the time that such a case normally requires, it is unfair to penalize the litigant by discounting his/her time because it is not recorded in a costs outline which only a lawyer can certify. Self-represented litigants face greater demands, doing the work of a lawyer in their case, than they face in their employment outside of court. This must be recognized and reflected in the way their time is valued.

68It is not practicable, in every case, to base the value of the litigant’s time on what that person normally is paid or earns outside of court. Such an analysis would require a separate hearing of evidence dedicated to finding facts relevant to the litigant’s circumstances every time a self-represented litigant’s costs are assessed. A better approach is to take into account the range of overall costs, and of hourly rates that any lawyers involved in the case are entitled to charge, based on the Costs Bulletin, with due regard to the quality of the work done and the outcome, in spite of the lesser knowledge and skill that the self-represented litigant brought to the task, or the intensity and difficulty of the work that the litigant faced.

69In Jahn-Cartwright, there was no evidence as to the amount of income that Ms. Cartwright had foregone by doing the work that she did on her case. Adopting the reasoning of Perrell J. in Mustang Investigations v. Ironside,⁵²I concluded that this evidence was not required. As Perrell J. noted in Mustang Investigations, requiring such evidence would disqualify litigants who are homemakers, retirees, students, unemployed, and unemployable, and would involve the judge or master in an unproductive examination of such evidence as if the claim for costs were a claim for damages for lost income. I therefore adopted Perrell J.’s conclusion that:

The true point is that a self-represented litigant can only expect to recover costs if he or she does work that a lawyer would do. Put somewhat differently, if the self-represented litigant demonstrates that he or she did the work ordinarily done by a lawyer, then they will have justified receiving an award of costs.

70In Jahn-Cartwright, I added: “The emphasis must be on the value of the work done. This encompasses both the value of the work to the Court and the value of the time spent to the litigant who performed the work, or who hired a lawyer to perform it.”

71Further, in Jahn-Cartwright, I referred to the range of lawyers’ hourly rates of $275 to $390 and accepted the $200 per hour that Ms. Cartwright claimed as a reasonable hourly rate to be applied to the time that she had spent preparing documents and arguing her case. I had particular regard to the detailed breakdown of costs that Ms. Cartwright had provided; the fact that she had made an offer to settle that was more favourable to Mr. Cartwright than the award the court had made; the income that Ms. Cartwright might have earned from self-employment; the time that was reasonable for the type of case; and the costs awards that had been made in other similar cases.

72Wildman J. assessed the self-represented litigant’s costs in Rashid v. Shaher,⁵³ a case that differed in important respects from Jahn-Cartwright. Wildman J. reviewed the distinguishing facts in Jahn-Cartwright, and particularly my findings that, Ms. Cartwright had made an offer to settle that was more favourable to Mr. Cartwright than the outcome of the motion; she had been motivated to represent herself by her husband’s failure to pay her the support she was entitled to receive; and Ms. Cartwright displayed no personal satisfaction from the role she assumed in representing herself. Wildman J. then stated:

That is very different from the case I have before me and, sadly, the case of many self-represented parties we see in Family Court. Ms. Shaher was not making reasonable efforts to settle. She has claimed 498 hours of pretrial preparation, 117 hours of counsel fees for trial and 26 hours of post-trial time, all at $200 per hour (minus the $12 per hour wage that she might have received during the trial). Her total claim for her own time and disbursements is approximately $130,000, plus another $32,901.86 for amounts that she says her various lawyers or Legal Aid charged her.

If I was to award anywhere near the amount that Ms. Shaher is requesting, I think I would be sending the entirely wrong message to self-represented parties. Without meaning any disrespect to Ms. Shaher, I do note that she is working as a waitress for $12 per hour. Why would she make any reasonable effort to settle her case, if she can receive $200 per hour litigating? It seems to me to be critical that the court make it clear to self-represented parties that the Jahn-Cartwright case is confined to its facts. It does not mean that self-represented parties will be able to charge $200 for their time preparing for and attending court, which is what Ms. Shaher feels it means, because she has charged her time at $200 per hour after reading this case. [Emphasis added.]

73I agree with Wildman J. that both a litigant’s failure to make reasonable efforts to settle and a grossly excessive claim, whether by a lawyer or a self-represented litigant, are factors properly considered in reducing the rate, as well as the time, allowed in a costs assessment. However, where a self-represented litigant, as here, has made reasonable efforts to settle and has not claimed time that is no more time than the case required, and is proportionate to the time spent by opposing counsel, then, as I stated in Jahn-Cartwright, “It would be fundamentally unfair, in these circumstances, to penalize her for not hiring a lawyer by discounting the costs of the legal work she performed in a lawyer’s place, and thereby reward her husband for forcing her to do that work herself.”⁵⁴

74Wildman J. stated, with regard to the relationship between the opposing lawyer’s hourly rate and the rate to be allowed to the self-represented litigant:

If I was to consider “lawyer’s rates” in fixing the costs of a self-represented litigant, I would be far more comfortable considering the rate that a junior lawyer would have been able to charge for this case. At one time, Ms. Shaher got an adjournment, as she had a legal aid certificate and was seeking a lawyer to represent her. My understanding is that, had she done so, a junior lawyer would have been able to charge approximately $13,425.07 plus HST for his or her work on this file.

In my view, it is not realistic for Ms. Shaher to expect she would be paid more than a lawyer would have been paid on the Legal Aid certificate. It is also not reasonable that the applicant would expect to pay Ms. Shaher more than he would have had to pay for her lawyer, if she had been able to retain someone through the Ontario Legal Aid Plan.

That Legal Aid rate of $13,425.07 plus HST forms the ceiling of what I would consider to be a reasonable cost award for the work done by Ms. Shaher on this file. To hold otherwise would, in my view, send a dangerous message to our legions of self-represented parties in Family Court that they can expect to “make money” going to court. This would run the risk of encouraging, rather than discouraging, improper litigation and unrealistic settlement positions.⁵⁵ [Emphasis added.]

75On the issue of whether a ceiling should be imposed on the hourly rate to be ascribed to a self-represented litigant, or a litigant represented by a lawyer who discounts his/her actual hourly rate to the client, I respectfully prefer the reasoning of Henderson J. in Zeleny v. Zeleny. Henderson J. applied the jurisprudence that has established that the broad objectives of costs awards are not attained by treating the financial arrangements between a solicitor and his client as determinative of the quantum of costs payable to a successful litigant. He stated:

Recent cases have made it clear that the financial arrangements between a solicitor and his client are not determinative of the entitlement to, or the quantum of, costs payable to a successful litigant. See the cases of Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 1997 12208 (ON SC), 37 O.R. (3d) 464 (Ont. Gen. Div.), and Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.).

In fact, certain courts have decided that even a successful self-represented litigant, who obviously had no solicitor client costs, was entitled to recover costs from the unsuccessful party, including an amount for counsel fee. See Skidmore v. Blackmore (1995), 1995 1537 (BC CA), 122 D.L.R. (4th) 330 (B.C.C.A.), approved by the Ontario Court of Appeal in the Fong case. Thus the fee payable by a successful litigant to his/her lawyer does not constitute an upper limit on the costs that the successful party may recover from the unsuccessful party.⁵⁶ [Emphasis added.]

76Henderson J. considered the CAW Retainer and Fee Agreement specifically with reference to the objective of encouraging settlement:

In matrimonial actions, the encouragement of settlement is an important principle. The greater the potential party/party costs, the greater the financial risk to an unsuccessful litigant. The greater the financial risk, the greater the likelihood of settlement. If the Fee Agreement limited the wife’s party/party costs to a maximum of $90 per hour [the hourly rate specified by the Agreement in Zeleny], then the costs for which the husband was at risk would also be limited to a maximum of $90 per hour, as opposed to $195 per hour [the hourly rate appropriate to the lawyer’s seniority] in this case. This interpretation of the Fee Agreement would have the effect of reducing the incentive for the husband to settle these motions.⁵⁷

77In Friday v. Friday,⁵⁸ when considering the weight to be given to the discount that the successful wife’s lawyer gave her, I adopted Henderson J.’s reasoning in Zeleny, and found that Ms. Friday’s CAW Retainer and Fee Agreement did not impose an upper limit on the costs she could recover from Mr. Friday. To impose such a limit would reduce the opposing party’s incentive to settle. The overall objective of the assessment of costs, I noted, was “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” This is a “fundamental concept in fixing or assessing costs.”⁵⁹

78In Izyuk v. Bilousov,⁶⁰ Pazaratz J. applied an hourly rate of $100 to the successful self-represented litigant (against a litigant whose lawyer’s hourly rate was $325 on a substantial indemnity scale, or $200 on a partial indemnity scale), although he reduced what would have been the resulting award of $30,000 to $10,000 based on the payor’s limited ability to pay. In Rodriguez v. Singh,⁶¹ Curtis J. awarded a successful self-represented litigant costs at approximately the same hourly rate ($100).

79In Spettigue v. Varcoe, Chappel J. awarded the self-represented litigant’s costs at $100 on a substantial indemnity scale, and $75 on a partial indemnity scale. She stated:

The case-law is clear that in valuing a self-represented litigant’s work on the case, the court should consider not only the income loss that the litigant experienced, but also the value of the work to the court. Having considered this principle and the factors discussed above, I conclude that Mr. Spettigue’s time should be valued at $100.00 per hour on a full indemnity basis, and $75.00 per hour on a partial indemnity basis.⁶²

80It is desirable that the Rules Committee review rule 24(11) and eliminate the implied premise that self-represented litigants are an exceptional presence in family law proceedings, and have no recognized role to play. The Rule in its present form imposes on such litigants, the added burden of establishing the principle of fair compensation for the time they devote to asserting or defending their legal rights when they cannot avail themselves of legal counsel.

81In an environment where a substantial proportion of litigants do not or cannot retain lawyers to represent them, access to justice demands that the court modify its Rules to eliminate the image of lawyers as gatekeepers of the courts. The rules should accommodate self-represented litigants who wish to consult lawyers as helpers and advisors but not as representatives and advocates.

82In Andersen v. St. Jude Medical Inc.,⁶³ the Ontario Divisional Court set out several principles that must be considered when awarding costs:

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1).⁶⁴

2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant.⁶⁵

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable.⁶⁶

4. The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results".⁶⁷

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice.⁶⁸

83In Clarington (Municipality) v. Blue Circle Canada Inc., the Court of Appeal for Ontario stated:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice.”⁶⁹ [Emphasis added]

84I stated in Jahn-Cartwright, at para. 69:

Where one party in a proceeding is represented by a lawyer and the other is not, the hourly rate that the represented litigant’s lawyer is entitled to claim on an assessment of costs should inform the reasonable expectations of both parties as to the costs that they will likely be required to pay if unsuccessful. Otherwise, the litigant who is represented by a lawyer would be less circumspect with regard to his or her conduct of the proceeding and his or her response to the opposing party’s efforts to settle because that party is a self-represented litigant.

85In Boucher, Armstrong J.A., of the Court of Appeal for Ontario, stated, with reference to rule 57.01(3) of the Rules of Civil Procedure:

In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor. See City of Toronto v. First Ontario Realty Corporation 2002 49482 (ON SC), 59 O.R. (3d) 568 at 574 (S.C.). I refrain from attempting to articulate a more detailed or formulaic approach. The notions of fairness and reasonableness are embedded in the common law. Judges have been applying these notions for centuries to the factual matrix of particular cases.⁷⁰ [Emphasis added]

86The hourly rate of Mr. Sharpe’s lawyer is one of several factors to be considered in assessing Ms. Bergen’s costs.

Time Properly Spent on the Case

87Rule 24(11)(d) of the FLR directs me to consider “the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order.”

88Ms. Bergen has submitted a Bill of Costs setting out the time she spent responding to Mr. Sharpe’s motion. Mr. Sharpe asserts that the time set out in the Bill of Costs was unreasonable and disproportionate to the issues. He has not, however, in his own submissions, disclosed what time his own lawyer spent, either preparing for or attending at the motion. This Court has held, on more than one occasion, that when one party attacks another’s costs as excessive, but declines to put its own dockets before the court, the attack “is no more than an attack in the air.”⁷¹

89Having reviewed Ms. Bergen’s Bill of Costs, which I am including in abridged form as a schedule to these reasons, I find that the time she spent was, on the whole, reasonable. I have reproduced the date entries as they appear in her Bill of Costs, even though the entries for November 29 and 30, 2010, disclose a clerical error in that they appear to refer to time actually spent on October 29 and 30.

90The tasks Ms. Bergen describes in her Bill of Costs were appropriate (with the exception of .5 hours researching libel and slander law, which were not necessary). The written material that she tendered to the court was professional in both its content and appearance. It was responsive to the issues and as helpful to the court as material prepared by a lawyer. Her oral submissions were also appropriate and helpful.

91Ms. Bergen’s Bill of Costs discloses that excessive time spent was spent on some tasks, which I attribute to the fact that Ms. Bergen lacked background knowledge that a lawyer would have. I have made the following reductions to eliminate the excessive time claimed:

1. I have reduced to 1 hour the 5.5 hours Ms. Bergen says she spent on October 15, 2010, reviewing Mr. Sharpe’s motion material;

2. I have reduced to 8 hours the 12 hours Ms. Bergen says she spent on October 17, 2010 preparing responding material. I have allowed the further 3 hours she says she spent on October 18, 2010 preparing a response to Mr. Plat’s affidavit.

3. I have reduced to 2 hours the 9 hours she says she spent on November 17 and 18, 2010, preparing costs submissions.

4. I have disallowed 1.5 hours of the 2.5 hours Ms. Bergen says she spent obtaining legal advice at the Family Law Information Centre (FLIC) office at the Brampton Courthouse (allowing 1.0 hour for the time she spent, while waiting, reviewing her submissions for the hearing).

5. I have reduced to 1 hour ($200) the 3.75 hours that she says she spent on two occasions filing documents at court, as an approximation of what a lawyer would reasonably have claimed for the services of process servers on those two occasions ($100 each for each attendance).

6. I have reduced to .5 hours the 1.0 hour Ms. Bergen claimed for swearing an affidavit at the FLIC office, and have disallowed the .75 of an hour she claimed for attending at Staples for copies of documents, on the basis that this was an administrative function normally delegated to clerical staff.

7. I have eliminated the .5 hours that Ms. Bergen says she spent on November 29, 2010 (which I believe should be October 29, 2010) researching libel and slander law.

92The above reductions total 20.75 hours, or a total of $4,150. Deducting this amount reduces the total amount of Ms. Bergen’s allowable time spent from $15,770 to $11,620.

93I find Ms. Bergen’s disbursements, which amount to $471.85, to be reasonable. She will be compensated fully for them as she is being awarded her costs on a substantial indemnity scale. Her costs, after the above reductions in her time, amount to $12,091.85, inclusive of fees and disbursements, plus HST.

Other Relevant Matters

94I must, at this point, “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I must take into account the reasonable expectation of the parties concerning the amount of costs.⁷²

95I have considered the following costs awards in motions for leave to appeal to the Divisional Court:

1. In Gale v. Gale, Smith J. reduced an award of partial indemnity costs of a motion for leave to appeal in a family law action from $16,318.59 to $8,487.09, citing the principle of proportionality.⁷³

2. In Tucci v. Pugliese,⁷⁴ a civil action, I awarded costs of $3,500 in what I found to be a standard motion for leave to appeal in a case of moderate complexity. I referred to Fernicola (In Trust) v. Creview Development Inc.,⁷⁵ in which Wilson J., on a motion for leave to appeal to the Divisional Court, stated:

I heard counsels’ submissions with respect to costs. The costs must be reasonable, in proportion to the amount in dispute and within the reasonable expectations of the losing party. A standard award for costs on an unsuccessful motion for leave to appeal is in the vicinity of $3,500. This would be such a standard motion for leave to appeal. [Emphasis added.]

d) In K.C. v. S.B., Lane J. awarded all inclusive costs of $53,311.58 on a full indemnity scale, after dismissing the applicant’s motion for leave to appeal from the order of Greer J. which varied the order of Karakatsanis J. with regard to interim child support and other related issues. Lane J. also dismissed the applicant’s motion for leave to appeal from the costs award of Greer J., in a case in which the court found bad faith on the part of the applicant.⁷⁶

e) In Dahdouh v. Dahdouh, Linhares de Sousa J. awarded partial indemnity costs in the amount of $3,500 in a motion for leave to appeal to the Divisional Court from an order granting the wife exclusive possession of the matrimonial home and fixing the parenting responsibilities of the parties.⁷⁷

f) In Szivy v. Schwilgin, Linhares de Sousa J. awarded partial indemnity costs of $9,000 in a motion for leave to appeal to the Divisional Court from an order involving supervised access and spousal support.⁷⁸

g) In Almeida v. Almeida, Miller J. awarded partial indemnity costs of $3,300 to the successful applicant for leave to appeal to the Divisional Court from a temporary order for child support and spousal support.⁷⁹

h) In Mgrdichian v. Mgrdichian, Jennings J. awarded partial indemnity costs in the amount of $4,000 plus disbursements for an unsuccessful motion for leave to appeal in what he found was essentially a family law dispute.⁸⁰

i) In Bullock v. Bullock, Quigley J. awarded costs of $2,900 on a partial indemnity scale after dismissing the wife’s motion for leave to appeal to the Divisional Court from a temporary order for child support and spousal support. The husband had sought substantial indemnity costs in the amount of $4,375, plus disbursements and taxes.⁸¹

96Based on the foregoing decisions, I conclude that the court’s past awards of costs in motions for leave to appeal should have caused Mr. Sharpe to expect to pay costs of between $3,000 and $9,000 on a partial indemnity scale and between $7,000 and $15,000 on a substantial indemnity scale if he was unsuccessful. The costs that I am awarding Ms. Bergen are well within the range of what Mr. Sharpe should reasonably have expected to pay on a substantial indemnity scale.

97I have considered the fact that Ms. Bergen’s costs, as reduced, of $12,091.85, inclusive of disbursements plus HST, are $3,000 less than the $15,087.02 that Mr. Sharpe paid to his own lawyer. While Mr. Sharpe points out that his lawyer charges him an hourly rate of $400, a lawyer of lesser experience, who charged a lower hourly rate than Mr. Abbott, would be expected to spend a greater amount of time for the same tasks. It is, ultimately, the value of the services, whether performed by Mr. Abbott for Mr. Sharpe, or by Ms. Bergen for herself, that determines the costs being allowed. The fact that Mr. Abbott’s fees to Mr. Sharpe were higher, supports my view that the costs I am awarding to Ms. Bergen are well within the range of what Mr. Sharpe should reasonably have expected to pay, on a substantial indemnity scale, if unsuccessful.

Mr. Sharpe’s Ability to Pay

98Mr. Sharpe has not argued that he is unable to pay costs in the amount. I therefore make no reduction on this account.

CONCLUSION AND ORDER

99Based on the foregoing, it is ordered that:

1. Mr. Sharpe shall forthwith pay to Ms. Bergen her costs of the motion in the amount of $12,091.85.

2. As these costs were incurred to preserve Ms. Bergen’s right to custody and parenting of Johnathan, and such rights to support as was derived from his residence with her, the costs shall be enforced as support by the Family Responsibility Office.

Price J.

Released: November 21, 2013

COURT FILE NO.: DC-10-79-00 (Brampton)

DATE: 2013-11-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JESSICA ANNE BERGEN

Applicant (Respondent in Motion)

• and –

ROBERT JOHN SHARPE

Respondent (Appellant in Motion)

COSTS ENDORSEMENT

Price J.

Released: November 21, 2013

Schedule A

Contents of Ms. Bergen’s Bill of Costs

Date	Category	Amount
Oct 15/10	Review of Appellant’s Motion Record, Factum, and Draft Notice of Appeal (5.5 hours hrs. x $200 per hour)	$1,100
Oct 16/10	Research, including Divisional Court Policies & Procedures, search re leave to appeal and stay of order, and re Mr. Sharpe’s lawyer and law firm. (4.0 hrs. x $200 per hour)	$ 800
Oct. 16/10	Stage 1 – Responding Material Preparations – Written Notes (2 hours x $200 per hour)	$ 400
Oct 17/10	Stage 2 – Responding Material Preparations – Drafting Notice of Motion to dismiss and gathering supporting schedules, and drafting factum sections 1, 2 & 3 (9 hours x $200 per hour)	$1,800
Oct 17/10	Research re Statement of Law for Section 4 of Factum (1.5 hours x $200 per hour)	$300
Oct 17/10	Stage 2 - Responding Material Preparations: Drafting Factum, Section 4 (1.5 hours x $200 per hour)	$300
Oct 18/10	Stage 2 – Responding Material Preparations: Drafting Affidavit in response to affidavit of Sean Plat, and gathering supporting schedules, and Stage 3 – Responding Material Preparations – Final Review and Printing of Documents for Court Submission (3 hours x $200 per hour)	$600
Oct 18/10	Attendance at Family Law Information Centre in Brampton for swearing of affidavit (1 hour x $200 per hour)	$200
Oct 18/10	Attendance at Staples in Brampton for copies and Purolator (.75 hours x $200 per hour)	$150
Oct 18/10	Attendance at Brampton for filing documents with court (1.25 hours x $200 per hour)	$250
Oct 19/10	Attendance at Brampton for filing documents with court (2.50 hours x $200 per hour)	$500
Oct 19/10	Attendance at Family Law Information Centre at Brampton Court house for legal advice re appeal, and reviewing court submissions in preparation for court while waiting (2.5 hours x $200 per hour)	$500
Oct 20/10	Reviewing court submissions of both Appellant and Respondent in preparation for court (2 hours x $200 per hour)	$400
Oct 21/20	Attendance at court for hearing of motion (7 hours x $200 per hour)	$1,400
Nov 3/10	Reviewing Cartwright v Cartwright (2 hours x $200 per hour)	$400
Nov 17/10	Stage 1 – Cost Material Preparation – Written notes (1 hour x $200 per hour)	$200
Nov 17/10	Stage 2 – Cost Material Preparations, including drafting excel spreadsheet (4 hours x $200 per hour)	$800
Nov 18/10	Stage 3 – Cost Material Preparations – Drafting Word document and final review and printing of documents for cost submission (4 hours x $200 per hour)	$800
Nov 24/10	Attendance for continuation of motion (.75 hours x $200 per hour)	$150
Nov 25/10	Research on – appeal granted in part with costs to respondent (2 hours x $200 per hour)
Nov 29/10	Research re libel and slander (.5 hours x $200 per hour)	$100
Nov 29/10	Review of Appellant’s documents, including Supplementary Brief of Law, Memo, and Supporting Case Law (2 hours x $200 per hour)	$400
Nov 30/10	Reviewing Appellant’s Documents, including transcript of proceedings from October 4 and 5 (5 hours x $200 per hour)	$1,000
April 4/11	Attendance at Brampton to obtain copy of endorsement and Order (1.5 hours x $200 per hour)	$300
April 4/11	Attendance at Staples in Brampton for copy and CD of Endorsement/Order (.25 x $200 per hour)	$50
April 4/11	Review of Endorsement/Order (1 hour x $200 per hour)	$200
Dates omitted (though included in Bill of Costs)	E-mail correspondence (described by Ms. Bergen in her Bill of Costs) 19 items for total of 4.0 hours x 200 per hour)	$800
	TOTAL HOURS: (78.85 hours x $200)	$15,770
Disbursements
	Mileage from Puslinch to Brampton: (5 trips x 126 kms @.40 per km) ($50 per trip) (itemized by date in original)	$250
	407 ETR toll charges	$48
	Copies and printer ink from Staples (itemized in original)	$116
	Research Material from High Conflict Institute	$22
	CD burning of documents (including transcript, endorsement/Order)	$19
	Purolator courier charge	$13
	TOTAL DISBURSEMENTS:	$471
	TOTAL FEES PLUS DISBURSEMENTS:	$16,241

Footnotes

1. 1Family Law Rules, O.Reg. 114/99 (Courts of Justice Act).
2. 2Courts of Justice Act, R.S.O. 1990, c. C. 43.
3. 3Cindy Jahn-Cartwright v. John Cartwright, 2010 ONSC 2263, at para. 74 [Jahn-Cartwright].
4. 4British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
5. 5Courts of Justice Act, s. 131.
6. 6Okanagan, at para. 25.
7. 71465778 Ontario Inc. v. 1122077 Ontario Ltd. (2007), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.), at para. 45, Feldman J.A.
8. 8Fong et al. v. Chan et al. (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), Sharpe J.A. [Fong].
9. 9Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 1997 12208 (ON SC), 37 O.R. (3d) 464 (S.C.), at p. 472 [Fellowes].
10. 10Fong, at para. 22.
11. 11The orders of: Belleghem J. dated September 16, 2008; Seppi J. dated April 14, 2009; Herold J. dated September 8 and December 1, 2009; Belleghem J. dated May 4, 2010; and Snowie J. dated June 14, 2010 and October 7, 2010.
12. 12Psychiatrists Dr. Pollock and Dr. Brian S. Joseph; Psychological Services Center, University of Buffalo; and the Office of the Children’s Lawyer.
13. 13Perri v. Thind et al. (2010), 2009 34977 (ON SC), 98 O.R. (3d) 74 (S.C.), Henderson J. [Perri].
14. 14Perri, at paras. 24- 26, 32- 33.
15. 15M. M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at p. 2-46 [Orkin]; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 154, re-stated in Perri.
16. 16Orkin, at p. 2-48.
17. 17Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.
18. 18Heuss v. Sarkos, 2004 ONCJ 141.
19. 19Osmar v. Osmar, 2000 20380 (Ont. S.C.), at para. 11, Aston J.
20. 20Osmar.
21. 21Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
22. 22“Information for the Profession Bulletin” from the Costs Sub-Committee of the Rules Committee: The Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005. The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
23. 23Blustein v. Kronby, 2010 ONSC 1718.
24. 24McDonald v. Goary, 2010 ONSC 3008.
25. 25Jahn-Cartwright v. Cartwright, 2011 ONSC 1827: Kruzick J. awarded the wife, who was by then represented by counsel, her costs of the appeal in the amount of $5,000. Mr. Cartwright soon moved to vary the earlier order, and both parties were again represented by counsel in that motion. Ms. Cartwright was successful and Kruzick J. awarded her costs in the amount of $17,000: Jahn-Cartwright v. Cartwright, 2013 ONSC 2318.
26. 26Kaverimanian v. Kaverimanian, 2013 ONSC 5265, at para. 40, Price J. citing Vandenbussche v. Walters, 2007 52441 (Ont. C.A.), at para. 18, Turnbull J.
27. 27Friday v. Friday, 2013 ONSC 6179, at paras. 66-75.
28. 28Jahn-Cartwright, at para. 69.
29. 29Skidmore v. Blackmore, 1995 1537 (B.C. C.A.), at para. 38, Cumming J.A.
30. 30Fellowes, at para. 33.
31. 31Jordan v. Stewart, 2013 ONSC 5037, at paras. 114, 116-17, Czutrin J. [Jordan].
32. 32Jahn-Cartwright, at para. 62.
33. 33Jahn-Cartwright at para. 71.
34. 34Jahn-Cartwright, at para. 72.
35. 35J. Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self- Represented Litigants, Final Report May 2013”, at p. 38-48, online: <www.representing-yourself.com>.
36. 36SRL Report, at p. 33.
37. 37Fong, at para. 23.
38. 38Powers v. Powers, 2004 ONCJ 245, 11 RFL (6th) 393, at paras. 35-40, Zuker J. see: Katz v. McNevin, 2012 ONSC 4946, at paras. 44, 46, Leach J.; SLR Report, at p. 39.
39. 39Children’s Aid Society of the Region of Peel v. S.J., 2009 48514 (Ont. S.C.), at paras. 40-44.
40. 40Balliu v. Balliu, 2008 19205 (Ont. S.C.), at paras. 6, 14, Eberhard J.
41. 41Ontario Ministry of Finance, online at: http://www.fin.gov.on.ca/en/reformcommission/chapters/ch5.html and http://www.fin.gov.on.ca/en/reformcommission/chapters/ch14.html
42. 42SRL Report, at p. 39: 4.3 billion dollars of the Provincial budget in 2010 to 2011 was devoted to the justice sector as compared, for example, to 44.77 billion dollars to the health care sector.
43. 43Nicholas Bala & Rachel Birnbaum, “The Rise of Self-Representation in Canada’s Family Courts” (2012), Paper prepared for the National Family Law Program, Halifax, Nova Scotia, at p. 10.
44. 44A.M. Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005) 30 Queens’s L.J. 825.
45. 45Jordan, at para. 126.
46. 46London Scottish Benefit Society v. Chorley, Crawford, and Chester (1884), 13 Q.B.D. 872.
47. 47Jordan, at paras. 127-28.
48. 48Wunsch v. Wunsch, 2013 ONSC 5208, at paras. 24-25, Czutrin J.
49. 49Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2005), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at 26, Armstrong J.A. [Boucher].
50. 50Delellis v. Delellis and Delellis, 2005 36447 (Ont. S.C.), at para. 9, Aston J.
51. 51Warsh v. Warsh, 2013 ONSC 1886, at paras. 21-22, Lauwers J.
52. 52Mustang Investigations v. Ironside, 2009 49323 (Ont. S.C.), at paras. 13-14, Perrell J.
53. 53Rashid v. Shaher, 2011 ONSC 852, 97 R.F.L. (6th) 213, Wildman J. [Rashid].
54. 54Jahn-Cartwright, at para. 81.
55. 55Rashid, at paras. 61-65.
56. 56Zeleny v. Zeleny, (2004), 2004 5094 (ON SC), 69 O.R. (3d) 287, (S.C.), at paras. 10-11, Henderson J. [Zeleny].
57. 57Zeleny, at para. 17.
58. 58Friday v. Friday, 2013 ONSC 6179.
59. 59Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 2003 8279, at para. 16 (Ont. S.C. Div. Ct.); Boucher, at para. 38; Davies v. Clarington (Municipality), 2009 ONCA 722, 312 D.L.R. (4th) 278.
60. 60Izyuk v. Bilousov, 2011 ONSC 7476, 7 R.F.L. (7th) 358.
61. 61Rodriguez v. Singh, 2012 ONCJ 797.
62. 62Spettigue v. Varcoe, 2012 ONSC 925, at para. 52, Chappel J.
63. 63Andersen v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. S.C. Div.Ct.) [Andersen].
64. 64Boucher; Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 [Moon]; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.) [Coldmatic].
65. 65Zesta Engineering Ltd. v. Cloutier, 2002 25577 (Ont. C.A.), at para. 4.
66. 66Rule 57.01(1) of the Rules of Civil Procedure.
67. 67Murano et al. v. Bank of Montreal et al. (1999), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.
68. 68Boucher.
69. 69Clarington (Municipality) v. Blue Circle Canada Inc, 2009 ONCA 722, 100 O.R. (3d) 66. see: Andersen referring to: Boucher; Moon; Coldmatic.
70. 70Boucher, at paras. 37-38.
71. 71Risorto v. State Farm Mutual Automobile Insurance Co., 2003 43566 (Ont. S.C.), Winkler J.
72. 72Boucher; Moon; Coldmatic.
73. 73Gale v. Gale, 2006 34428 (Ont. S.C. Div.Ct.).
74. 74Tucci v. Pugliese, 2010 ONSC 2144.
75. 75Fernicola (In Trust) v. Creview Development Inc., 2009 492 (Ont. S.C. Div. Ct.), at para. 15.
76. 76K.C. v. S.B. (2008), 2008 5109 (ON SC), 49 R.F.L. (6th) 286 (Ont. S.C.).
77. 77Dahdouh v. Dahdouh, 2003 1920 (Ont. S.C.).
78. 78Szivy v. Schwilgin, 2003 2036 (Ont. S.C.).
79. 79Almeida v. Almeida, 2012 ONSC 5239.
80. 80Mgrdichian v. Mgrdichian (2005), 18 R.F.L. (6th) 458 (Ont. S.C. Div. Ct.).
81. 81Bullock v. Bullock (2007), 2007 59150 (ON SCDC), 47 RFL (6th) 58 (Ont. S.C. Div. Ct.).