CITATION: Hickey v. Princ, 2016 ONSC 894
COURT FILE NO.: DC-14-2058
DATE: 2016-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY R.S.J., LOFCHIK AND MATHESON JJ.
B E T W E E N:
EDWARD HICKEY
James N. Eastwood, for the Applicant
Applicant (Respondent on Appeal)
- and -
GAYE PRINC
Jodi R. Fleishman, for the Respondent
Respondent (Appellant on Appeal)
COSTS JUDGMENT
LOFCHIK J.:
Overview
[1] This appeal raised the question as to whether a former spouse who chooses to retire at age 51 on a full pension but still able to work and earn an income is entitled to reduce and ultimately discontinue paying spousal support to his former wife, who is disabled from working and is almost totally dependent on those spousal support payments to provide for her needs.
[2] The motions judge in a ruling dated September 11, 2014, answered that question in the affirmative and ordered a reduction of support payments from $2,468.30 per month to $1,050.00.
[3] The Appellant former wife appealed that decision to this court and in the result, the order which was varied by the motions judge was reinstated to provide for monthly support payments of $2,468.30. The Appellant seeks costs of the appeal and of the original motion on a substantial indemnity basis. The arguments made in favour of an entitlement to substantial indemnity costs are firstly that the Respondent husband conducted the proceeding in an egregious and abusive manner, systematically trying to reduce the termination of spousal support being fully aware that his wife was disabled and unable to work or support herself without the spousal support and by making material misrepresentations in the proceeding by swearing false affidavits, and, secondly, because the Appellant delivered an offer to settle on January 17, 2014, which was more favourable to the Respondent than the order on appeal, which offer was not accepted by the Respondent.
[4] With respect to the first ground, we are not prepared to find the requisite intent to harm, conceal or deceive required to establish bad faith or to find that the Respondent’s conduct of the action amounts to egregious conduct requiring rebuke by the court.
[5] With respect to the second ground, the Respondent concedes that the court’s disposition of the appeal is more favourable than the Appellant’s offer. We see no reason why the Appellant should not be entitled to substantial indemnity costs in the proceedings before the motions judge from the date of the offer, being January 17, 2014.
Quantum
[6] The claim for costs on a substantial indemnity basis in respect of the lower court decision is $40,846.46. The claim for costs with respect to the appeal is $75,163.82. In addition, the Appellant has raised the matter of $13,000.00 in fees incurred from January 2013 to October 2013 prior to the current counsel being retained, which fees dealt with responding to the motion up to attending the case conference and settlement conference which had been completed before current counsel became involved in the matter. All claims are inclusive of fees, disbursements and GST.
[7] The original motion required a full day, including travel time, and the appeal required half a day hearing.
[8] Rule 24(11) of the Family Law Rules, O. Reg. 114/99 provides that, in exercising its discretion to award costs, the court must consider the following factors:
(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...
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[9] We find that the hourly rates claimed by counsel are reasonable.
[10] In this case, the issues and facts were difficult and important as the state of the law was somewhat unsettled and required clarification.
[11] 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 v. Public Council (Ontario) (2014), 2004 14579 (ON CA), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable to the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant: Atkinson v. Atkinson [2014] O.J. No. 4332, para. 20.
[12] Even in making an award of full recovery, the court must ensure that the costs sought by the successful party are reasonable in the circumstances.
[13] It is the position of the Respondent that the costs claimed are excessive and disproportionate to the proceedings. When one considers that the total costs claimed are in excess of four years’ worth of support payments, we consider that the argument has some merit.
[14] The bills of costs are broken down only as a general summary of work done with respect to the fees for both the motion and the appeal hearing. There is no detail and no breakdown as to precisely what work was done or was claimed to have been completed. There is even less breakdown in respect of the fees of former counsel which have been included in the claim for fees on the motion. It is difficult to determine exactly what work was done by each counsel and the legal clerk as the same generic outline is referred to and there are no time dockets. We therefore assume that there was some duplication of services and the bill of costs should be reduced. There would also have to be some duplication of effort resulting from the transfer of the file allowing new counsel to get up to speed on the matter. As a result, we are unable to assess to what extent the work was duplicated and on how the fees were arrived at. As stated by the Ontario Court of Appeal, “cost awards at the end of the day should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: Serra v. Serra 2009 ONCA 395, [2009], O.J. No. 1905 at para. 12.
[15] The costs claimed by new counsel for the motion are for review of the documents and preparation for a half-day hearing. The time claimed is in excess of 130 hours which equates to more than three 40-hour work weeks. In addition to this, $11,700.00 is claimed for previous counsel’s work, for a total of $46,792.75, which has been reduced to $35,092.75.
[16] As an indication of what might be considered reasonable by the Respondent on the motion for full indemnity costs is a bill of costs prepared and submitted by them following the original motion hearing claiming $21,675.00 in fees.
[17] Insofar as fees on the appeal are concerned, total fees claimed are $69,613.25 for a total of 295.45 hours. Lawyer’s time claimed is for $67,123.25 for 268.65 hours. This time is equivalent to over six weeks of full-time work. It is also equivalent to over two years of support payments.
[18] Even considering the fact that a motion had to be brought for admission of fresh evidence, that additional time was required to prepare material because of the limits of the Appellant’s cognitive functions due to her medical condition, fees claimed are grossly out of proportion to what one would reasonably expect in a proceeding of this nature.
[19] Applying the criteria as set out by the courts for setting fees in matters such as this, we find reasonable fees on a partial indemnity basis to January 17, 2013 and substantial indemnity basis thereafter as follows:
i. Counsel fee on the motion - $30,000.00
ii. HST - $3,380.00
iii. Counsel fee on the appeal - $42,000.00
iv. HST - $5,460.00
v. Disbursements - $3,917.65
vi. Taxable disbursements - $3,457.65
vii. Total fees - $72,000.00
viii. HST on fees - $9,360.00
ix. Total disbursements - $3,917.65
x. HST on taxable disbursements - $449.49
xi. Total fees and disbursements inclusive of HST - $85,727.14
[20] Order to issue accordingly.
T. Heeney R.S.J.
T. Lofchik J.
W. Matheson J.
Released: February , 2016
CITATION: Hickey v. Princ, 2016 ONSC 894
COURT FILE NO.: DC-14-2058
DATE: 2016-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY R.S.J., LOFCHIK AND MATHESON JJ.
B E T W E E N:
EDWARD HICKEY
Applicant (Respondent on Appeal)
- and -
GAYE PRINC
Respondent (Appellant on Appeal)
COSTS JUDGMENT
Released: February 22, 2016