Court File and Parties
LONDON COURT FILE NO.: F1089/18 DATE: 20190404 SUPERIOR COURT OF JUSTICE – FAMILY COURT BRANCH
RE: Jorge Goffi, Applicant AND: Chantal Goffi, Respondent
BEFORE: Howard J.
COUNSEL: Alexander Hodder, for the Applicant Debora Canedo Brubacher, for the Respondent
HEARD: Written submissions
Costs Endorsement
Overview
1In my endorsement released November 15, 2018, I allowed the respondent mother’s motions regarding the applicant father’s weekend parenting time with the two children of the marriage, namely, Alyssa Ella Goffi, born May 17, 2009, and Aythen Alejnadro Goffi, born June 8, 2012, with the children to continue to remain in the primary care of the respondent mother at all other times. [1]
2In para. 86 of my endorsement, I concluded that the respondent mother was the more successful party on the motions before me and is presumptively entitled to her costs.
3In para. 87 of my decision, I dealt with the issue of costs as follows:
If the parties are unable to agree on the issue of costs, they may file brief written submissions with the court, through the TCO, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:
a. the respondent mother shall deliver her submissions within twenty (20) days following the release of this endorsement;
b. the applicant father shall deliver his submissions within twenty (20) days following service of the respondent’s submissions;
c. the respondent mother shall deliver her reply submissions, if any, limited to two (2) pages, within five (5) days following service of the applicant’s submissions;
d. if either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs.
4The parties have been unable to agree on the costs of the motions.
5In accordance with the prescribed schedule, the respondent mother delivered her costs submissions on December 4, 2018, the applicant father delivered his responding submissions on December 21, 2018, and the respondent mother delivered her reply submissions on December 22, 2018.
6I have read and considered all the submissions received.
7The respondent mother seek payment of her costs of the motions on, essentially, a full recovery basis in the total amount of $5,774.30, as follows:
a. Total Fees $4,990.00
b. HST on Fees 648.70
c. Subtotal on Fees 5,638.70
d. Disbursements 120.00
e. HST on Disbursements 15.60
f. Total $5,774.30
8The applicant father maintains that the respondent mother should pay his costs of the motions fixed in the amount of $1,000, all inclusive, or that, in the alternative, there should be no costs payable on the motions.
Governing Legal Principles
9Costs awards in family law matters are governed by section 131 of the [Courts of Justice Act][2] and Rules 24 and 18 of the [Family Law Rules][3].
10Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs. Rule 24 of the Family Law Rules governs the determination of costs in family law proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs.
11Making an award of costs is inherently an exercise of judicial discretion. Indeed, our Court of Appeal has said that “costs awards are ‘quintessentially discretionary.’” [4] While the provisions of Rule 24 of the Family Law Rules have circumscribed the broad discretion granted to the court by s. 131(1) by the Courts of Justice Act, they have not completely removed the court’s discretion. [5]
12The indemnification of the successful party is a paramount objective, but not the only one, to be served by a costs order. [6] Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (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.” [7]
13Consideration of success is the starting point in determining costs. [8] Costs generally follow the event. In other words, a successful party is generally entitled to compensation for her or his legal costs. That principle is expressly reflected in the presumption codified in subrule 24(1) of the Family Law Rules, which provides that: “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
14However, that presumption may be rebutted where it is shown that the successful party has behaved unreasonably. In that regard, subrule 24(4) provides that:
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.
15In setting the amount of costs to be awarded, subrule 24(11) of the Family Law Rules enumerates a number of factors that must be taken into account, as follows:
(11) In setting the amount of costs, the court 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.
16However, while subrule 24(11) mandates the court to consider the enumerated factors, our Court of Appeal has held that the “ Family Law Rules demand flexibility in examining the list of factors in subrule 24(11).” [9]
17In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. Rather, the overriding principles that the court must apply are fairness and reasonableness. As the Ontario Court of Appeal observed in its leading decision in [Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26][10]: “[o]verall, as this court has said, the objective is 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.”
18I am guided by these governing principles here.
Analysis
The allegations of unreasonable behaviour
19Both parties accuse the other of unreasonable behaviour.
20The respondent mother alleges that the parties could have entered into a consent endorsement request with respect to the father’s access to the children. The respondent mother submits that the applicant father behaved unreasonably, which resulted in added costs incurred by the mother, because, essentially, the applicant father refused to accept the respondent mother’s position. In the same vein, I note para. 3 of the respondent’s cost submissions that the applicant’s “refusal to engage with the offers are also demonstrative that the [applicant] has been an unreasonable party.”
21I note, however, that para. 7 of the respondent mother’s submissions concedes that “there is no clear evidence of bad faith by either party at this motion.”
22I agree with that observation. From my perspective, both parties appear to have rather steadfastly maintained their respective positions. That said, there is no evidence of either party acting in bad faith, as contemplated by subrule 24(8).
23For his part, the applicant father alleges that the respondent mother has engaged in unreasonable behaviour, that the presumption codified in subrule 24(1) has been rebutted, and that the respondent mother should be ordered to pay the costs of the applicant father pursuant to subrule 24(4).
24The cases on which the applicant father relies in support of his submission that the respondent mother has engaged in unreasonable behaviour within the meaning of subrule 24(4) are, in my view, entirely distinguishable from the circumstances of the case at bar.
25For example, the applicant father relies upon the decision of Harvison Young J. in [Ignjatov v. Di Lauro, 2014 ONSC 7362, 54 R.F.L. (7th) 433 (S.C.J.)][11]. However, in that case, the court expressly found that the applicant mother there had embarked upon a “systematic attempt to minimize and marginalize [the respondent father’s] role in his children’s lives, and to denigrate and degrade him in their eyes, …” [12] There was no such course of conduct by the respondent mother in the instant case.
26Similarly, while the applicant father also relies upon the decision of Beaudoin J. in [Karar v. Abo-El Ella, 2017 ONSC 33, 93 R.F.L. (7th) 435 (S.C.J.), at para. 21][13], in that case Beaudoin J. expressly found that he “was satisfied on all of the evidence that the mother had attempted to frustrate the father’s access and his relationship with his children from the onset of these proceedings.” I made no such finding in the instant case, nor, in my view, was such a finding available to the court on the evidence before me.
27In my view, as is so often the case in family law matters, the questions presented to the court for determination – here, what are the appropriate interim parenting arrangements regarding the father’s access to the children on the weekends – reflect issues upon which reasonable persons may disagree. The finding of the court that one party’s position should prevail does not mean that another party acted unreasonably in having a different view.
28As such, I find no merit in the respondent mother’s argument that because her position ultimately prevailed, the applicant father must be held to have acted unreasonably so as to warrant an award of costs on an elevated scale.
29However, I also reject the applicant father’s submissions for much the same reasons as I reject the respondent mother’s.
30In my view, this is a fairly typical case where the two parents held different views as to what should happen with the father’s weekend parenting arrangements, and they both pursued their respective positions to the courtroom for determination. They, and their respective counsel, pursued their respective positions with apparent vigour and certain determination. It is fair to say that their demeanour in dealing with each other could not be said to be collaborative. However, without more, that does not necessarily mean that either party engaged in unreasonable behaviour so as to warrant costs sanctions.
31Further, while some passages in the submissions of the applicant father point to certain positions adopted by counsel for the respondent mother subsequent to the release of my endorsement of November 15, 2018, in respect of the parties’ attempt to resolve the issue of costs (p. 2 of the respondent’s submissions), in the course of the applicant’s attempts to portray the respondent as being unreasonable, I give no effect to those submissions. In my view, reference to the parties’ respective settlement positions on the issue of costs is not appropriate where the court has not yet determined that issue. Just as counsel would not and must not advise the trial judge of the respective settlement positions of the parties on the outstanding issues at trial, counsel ought not to reference the respective settlement positions of the parties on the issue of costs where that issue has yet to be determined by the court. Accordingly, I give no regard for those specific passages of the submissions of the applicant father.
32In my view, in all of the circumstances of the instant case, I find that the respondent mother did not engage in unreasonable behaviour within the meaning of subrule 24(4) so as to displace the presumption that, as the successful party on the motions, the respondent mother is entitled to her costs.
The offers to settle and application of Rule 18
33In paras. 3 and 7 of her costs submissions, the respondent mother makes passing reference to certain offers to settle, copies of which are appended to her submissions, being her offers to settle dated September 27, 2018, and October 18, 2018.
34The interest in promoting settlement, which, again, is one of the fundamental purposes of costs awards, finds expression in subrules 18(14) to (16) of the Family Law Rules, which address the cost consequences of failing to accept formal offers to settle, in the following terms:
(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.
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
(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.
35The submissions of the applicant father take the position (at p. 4) that the respondent mother admits in her costs submissions that, as compared to the order obtained by the court on the motions, the respondent’s offers to settle cannot be said to be equal to or more favourable than the court’s order.
36As reflected in para. 7 of the respondent mother’s costs submissions, I understand that the respondent mother believes that she fared “close” to her offers to settle. I would just note, however, that in order to attract the costs consequences provided by subrule 18(14), it is not sufficient that a party obtain an order that comes “close” to his or her offer to settle. Rather, para. 5 of subrule 18(14) requires that the “party who made the offer obtains an order that is as favourable as or more favourable than the offer.”
37That said, in this case it is unnecessary to engage in a comparison of the respondent’s offers to settle with the ultimate order obtained in order to determine whether the offers were at least as favourable because, in any event, as the cost submissions of the applicant father correctly point out, the respondent mother’s offers to settle do not comply with the formal requirements of an offer to settle as prescribed by subrule 18(4), which provides that:
An offer shall be signed personally by the party making it and also by the party’s lawyer ….
38Rule 18(4) requires that an offer to settle must be signed personally by the party making it and also by the party’s lawyer, where the party is represented. It is plain that neither of the respondent mother’s offers were actually signed by the respondent mother. It appears that both were signed by the respondent’s counsel on behalf of the respondent mother.
39It has been held that rule 18(4)’s requirement that the offer to settle be signed personally by the party and his or her lawyer, if any, is mandatory. [14] The offers in the instant case were not signed personally by the respondent mother.
40As such, I find that the cost consequences set out in subrule 18(14) of the Family Law Rules do not apply in the circumstances of the instant case. I would not award costs on an elevated scale to the respondent mother on account of the offers to settle delivered by the respondent.
The quantum of costs sought by the respondent mother
41In settling the amount of costs sought by a party, clause 24(11)(c) mandates the court to consider the lawyer’s rates.
42In this regard, the applicant father raises what I consider to be a preliminary issue. He argues that because the respondent mother is in receipt of a legal aid certificate from Legal Aid Ontario, she is not entitled to claim and recover her lawyer’s full rates (in this case, $200 per hour for Ms. Brubacher and $60 for her law clerk). In short, the father argues that because the mother’s case is funded by Legal Aid Ontario, her costs should be fixed at the Legal Aid rate.
43There is no merit to this position. The authorities referenced in the respondent mother’s reply submissions make clear that under both the Legal Aid Ontario: Tariff and Billing Handbook and judicial decisions on point, “[t]he fact that a client is legally aided is not relevant to the assessment of costs. When assessing costs, the private retainer rate of the legal aid lawyer should be referenced.” [15]
44Further, the applicant father’s position has been thoroughly considered and rejected by the courts, including the Divisional Court of Ontario and the Ontario Court of Appeal.
45In [Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435 (S.C.J.)][16], Wein J. of the Superior Court of Justice extensively reviewed the applicable legislation and authorities, and concluded that “the party paying the costs simply pays the same amount as they would if the client were not legally aided,” as follows:
Issue #1: Level of costs
5The [Legal Aid Services Act, S.O. 1998, c. 26][20], provides a statutory scheme for the provision of legal aid services in Ontario.
6Section 46 of the Act provides:
(1) The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.
Existing caselaw
7It has been held that a legally aided client stands before the court in exactly the same position as any other litigant. The amount of costs to be awarded in favour of a party who has received Legal Aid is not to be affected by the fact that the person is legally aided.
8The phrase “recoverable in the same manner and to the same extent” in s. 46 of the Act, has been held to obviate the indemnity principle in cases where a party receiving costs is legally aided.
[T]he section is designed to make it clear that the taxation of costs in favour of a person to whom Legal Aid has been given is in no way affected by the fact that the client is a legally aided person... Section 46 is intended to obviate the indemnity principle in respect of costs awarded to the legally aided person.
... the taxation of costs pursuant to a judgment obtained by a legally aided person is something entirely separate and distinct from the allowance of fees to a barrister and solicitor pursuant to the Legal Aid Act and Regulations. ([Fothergill v. Fothergill, [1973] 1 O.R. 708 (Ont. H.C.)][21])
9In [Cropper v. Cropper, [1974] O.J. No. 477 (QL) (C.A.)][22], the Court of Appeal held that it was irrelevant to consideration of the costs to be awarded in a child custody matter whether a party was legally aided. The court held that the fact that one party had a Legal Aid certificate ought not even to be brought to the attention of the court. [Emphasis added.]
10In [O’Sullivan v. Lindley, [2000] O.J. No. 3965 (QL) (C.J.)][23], the court held that the assessment of costs should be made without regard to the litigant’s receipt of Legal Aid.
The caselaw is quite clear that when assessing costs the Court must function as if it is totally ignorant of the fact the litigant may be legally aided.
The court went further and considered that:
Where the existence of a Legal Aid certificate has been disclosed, it is improper to infuse deliberations on costs with discussions about the Legal Aid certificate.
11Even more recently in [Foran v. Foran, [2001] O.J. No. 430 (QL) (S.C.J.)][24], it was held in a family law matter that the fact that the parties were both legally aided should not be considered in the assessment of costs.
12Finally, in [Ragin v. Ven-Cor Vending Distributors Ltd., [2001] O.J. No. 3763 (QL) (S.C.J.)][25], the court followed the previous authorities and held that in making a costs order the court cannot consider the existence of a Legal Aid certificate.
13All of these cases relied on by counsel for Legal Aid were decided prior to the year 2002 amendments to Rule 57 of the Rules of Civil Procedure. Rule 57 provides guidance to the court in determining the amount of costs of a proceeding where the court decides to fix costs. The amendment which came into force on January 1, 2002 incorporated a new “costs grid” and required that a court hearing a matter fix the costs of the proceeding, except in an exceptional case.
14Counsel for the defendants argues that the issue of costs has been significantly altered by these amendments, such that the prior decisions relied on by Legal Aid Ontario are of limited value. In [Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.J. No. 597 (QL) (S.C.J.)][26], it was said:
The issue of costs has been significantly altered. A new cost grid has been adopted which among other things makes major changes to the hourly rates which are recoverable where costs are fixed. Past awards of costs in terms of quantum are of limited, if any, relevance. Per Nordheimer J.
15Of greater relevance is the decision, also by Justice Nordheimer, in [Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921 (QL) (S.C.J.)][27]. This case considers the issue of the assessment of costs applicable in cases where salaried solicitors have been retained, or where there are contingency fee arrangements, or where costs are awarded to self-represented litigants. The court noted that while costs recovery is available in all of these situations:
... none of the authorities, or the reasons underlying them, stand for the proposition that a party can recover costs in excess of that which is in fact being charged for those services by its lawyer. Indeed the contrary is true.
An award of costs is intended to indemnify a party, in whole or in part, for costs which that party has incurred or is obliged to incur to their solicitors. The change in the labels for the scales of costs from solicitor and client and party and party to substantial indemnity and partial indemnity should make this obvious.
16The court went on to say:
... given this basic principle that is central to any award of costs whether on a partial or a substantial indemnity basis, that it is not appropriate for counsel to seek payment at rates that are over and above those that are actually being charged to the client. As a matter of fact, I would go further and say that there is a positive obligation on counsel, who are operating under a special arrangement regarding their fees, to reveal that special arrangement to the court.
17The LPIC case (supra) has been referred to with approval by the Ontario Court of Appeal in [Wasserman, Arsenault Ltd. v. Sone, [2002] O.J. No. 3772][28] (October 4, 2002).
18Nothing in the LPIC case deals with the legislation that overrides these general principles in the case of legally aided solicitors.
19Counsel for the defendants argues that the Ontario Legal Aid Plan is in an identical situation to the Lawyers’ Professional Indemnity Company (LPIC) or C.M.P.A. or counsel acting for insurance companies, in terms of indemnity. A Legal Aid certificate simply provides a specific contract of insurance for fees. The defendants argue that the Fothergill decision, which holds that the indemnity principle is obviated by s. 46 of the Legal Aid Act has been misinterpreted and/or extended too far by subsequent courts, allowing Legal Aid to make a “tremendous profit” on cases where it recovers costs.
20Cases which have considered the issue of the application of the costs grid in cases where the successful party was on legal aid have followed the Fothergill line of cases.
21The issue of the interpretation of section 46(1) of the Legal Aid Services Act was dealt with without detailed analysis in [Turczinski v. Dupont Heating (S.C.J.), released June 28, 2002 [unreported]][29]:
As for the Legal Aid issue raised, I am of the view that section 46(1) of the Legal Aid Services Act answers this objection entirely. The statute requires that the costs awarded to a party who has received legal aid services are recoverable in the same manner and to the same extent as though awarded in an individual who has not received legal aid services.
The hourly rates proposed ... are not unreasonable. Per MacFarland J.
Hourly rates based on the cost grid were awarded in that case.
22In [Nairn v. Lukowski, [2002] O.J. No. 2680 (QL) (S.C.J.)][30], the court specifically referred to Fothergill, Cropper, and Foran, in ruling that rates charged in reference to the Ontario cost grid were reasonable. The court stated:
... [the applicant] was legally aided with respect to this litigation. The fact that she was on Legal Aid does not limit the costs recoverable to the amount payable to counsel pursuant to the current Legal Aid rates....
The rates charged for the applicant’s counsel are reasonable at $200.00 per hour.
23Neither Basdeo (supra) nor the LPIC case (supra) decided by Justice Nordheimer were referred to in either of these decisions, but the argument advanced by Counsel for the defendants has not convinced me that the amendments to Rule 57 have altered the previous interpretation of s. 46 of the Legal Aid Act. While indemnification is in general the guiding principle with respect to the award of costs on either a substantial indemnity or partial indemnity scale, an award of costs which reflects normal indemnification amounts rather than the Legal Aid tariff simply reflects an intention to augment the principle in Legal Aid cases by requiring that the normal amount of costs still be paid.
24It might have been preferable if the interpretation based on Fothergill and Cropper had been set out in the amendment, or stated as in other parallel legislation. See for example s. 17(11) of [The Legal Aid Services Society of Manitoba Act, R.S.M. 1987, c. L105][31], which provides that “the amount of the costs awarded may exceed the actual amount of the expenditure incurred in respect of the matter.”
25Nonetheless in accord with the existing authority I find that s. 46 of the Act was and is specifically intended to obviate the indemnity principle in Legal Aid. There is nothing unfair about this interpretation. There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced. [16]
46Both s. 46 of the Law Society Services Act, 1998 and the decision of Wein J. in [Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (S.C.J.)][16] were considered by Conway J. in [Smith v. Smith, [2008] O.J. No. 1674, 56 R.F.L. (6th) 148 (Ont. S.C.J.), at para. 19][17], as follows:
The caselaw has interpreted this section as meaning that costs are to be assessed without regard to the fact that the successful litigant receives Legal Aid and that the party paying costs pays the same amount it would have if the successful party had not received Legal Aid: see [Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (S.C.J.) at para. 25][16] and [Alvarez v. Smith, [2008] O.J. No. 941 at para. 17 to 19][32].
47The reasons of Wein J. in [Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (Ont. S.C.J.)][16] were approved by the Ontario Court of Appeal in [El Feky v. Tohamy, 2010 ONCA 778, [2010] O.J. No. 6002 (C.A.), at para. 1][18], where the court held that:
The respondent raises two issues with respect to costs of the appeal and the motion. First, he argues that because the appellant’s case is funded by Legal Aid Ontario, costs should be fixed at the Legal Aid rate. We do not agree. This issue is determined by s. 46 of the [Legal Services Act, 1998, S.O. 1998, c. 26][20]. See reasons of Wein J. in [R. (S.) v. R. (M.) (2002), 62 O.R. (3d) 107 (Ont. S.C.J.)][16].
48As such, I find no merit in the submissions advanced on behalf of the applicant father that because the mother’s case is funded by Legal Aid Ontario, her costs should be fixed at the Legal Aid rate. Indeed, in view of the well-established caselaw, including that of our Ontario appellate courts, it is not clear to me why the point was pursued.
49I find that the hourly rate claimed of $200 is fair and reasonable.
50Clause 24(11)(a) requires the court to have regard for, inter alia, the complexity of the proceedings.
51As indicated in para. 17 of my endorsement of November 15, 2018, in consideration of the three motions before the court, the parties filed and I reviewed, inter alia, the affidavit of the applicant father sworn August 28, 2018 [T4], the affidavit of the respondent mother sworn September 6, 2018 [T6], the responding/reply affidavit of the respondent mother sworn September 27, 2018 [T9], the responding/reply affidavit of the applicant father sworn October 17, 2018 [T10], and the reply affidavit of the respondent mother sworn October 16, 2018 [T15]. As such, there were five affidavits filed in support of the motions.
52There was no cross-examination conducted on any of the affidavits.
53However, there were multiple attendances required on the motions, i.e., on September 5, 2018, before Henderson J., on September 19, 2018, before George J., on October 3, 2018, before Mitrow J., and ultimately on October 24, 2018, before myself. That said, I appreciate that there was one adjournment requested by the respondent mother in order that she could retain legal counsel where she was short-served with the applicant’s motion.
54Further, as indicated in para. 19 of my November 15th endorsement, argument on the motions before me lasted some 55 minutes.
55In these circumstances, having reviewed the respondent mother’s bill of costs, and having considered the parties’ submissions, the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, the factors enumerated in rule 24(11) of the Family Law Rules, and all other relevant considerations, I find that the sum of $2,500 (inclusive of fees, disbursements, and HST) is a fair, reasonable, and proportionate amount for the respondent mother to recover in costs for the motions.
56Accordingly, I fix the costs of the motions payable to the respondent mother on a partial indemnity basis in the amount of $2,500 (inclusive of fees, disbursements, and HST).
Costs of the costs submissions
57The respondent mother claims costs of the preparation of the costs submissions.
58I cannot say that the mother’s request is unreasonable. In my view, this was a hearing of fairly typical competing motions that was brought in regular motions court (although it consumed some 55 minutes of court time). One might have thought that the costs of such a fairly typical hearing, which was not of unreasonable duration, might have been capable of resolution by the parties without the need for the parties to expend further time and money on the preparation and delivery of costs submissions, or to engage the court’s further time and limited resources on the determination of the question of costs. The parties were not separated by tens of thousands of dollars here; they ought to have resolved the question of costs themselves.
59In the circumstances, I would award the respondent mother her costs of preparation of her costs submissions in the total amount of $500, all inclusive.
Conclusion
60Therefore, an order shall go for the payment by the applicant father to the respondent mother of her costs of the motions heard October 24, 2018, on a partial indemnity basis, fixed in the total amount of $3,000 (inclusive of fees, disbursements, and HST), payable within 30 days.
Original signed by Justice J. Paul R. Howard
J. Paul R. Howard Justice
Date: April 4, 2019
[1]: Goffi v. Goffi, 2018 ONSC 6822 (S.C.J.) [2]: Courts of Justice Act, R.S.O. 1990, c. C.43 [3]: Family Law Rules, O. Reg. 114/99 [4]: Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 67, quoting Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126. [5]: M. (A.C.) v. M. (D.) (2003), 67 O.R. (3d) 181, 43 R.F.L. (5th) 149 (C.A.), at para. 40 [6]: Watterson v. Canadian EMU, 2018 ONSC 301 (Div. Ct.), at para. 8 [7]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, citing Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22. See also 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.), at para. 26. [8]: Davis v. Fell, 2016 ONCJ 84, at para. 28, cited with approval in Talbot v. Talbot, 2016 ONSC 1351, 76 R.F.L. (7th) 370 (S.C.J.), at para. 7, per Templeton J., and Stephens v. Stephens, 2016 ONSC 1393 (S.C.J.), at para. 5, per Raikes J. [9]: M. (C.A.) v. M. (D.), at para. 42, quoting with approval Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330, 6 R.F.L. (5th) 430 (S.C.J.), at para. 4, per Aston J. [10]: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26 [11]: Ignjatov v. Di Lauro, 2014 ONSC 7362, 54 R.F.L. (7th) 433 (S.C.J.) [12]: Ibid., at para. 15 [13]: Karar v. Abo-El Ella, 2017 ONSC 33, 93 R.F.L. (7th) 435 (S.C.J.), at para. 21 [14]: See Riss v. Greenough, [2003] O.J. No. 1574, 37 R.F.L. (5th) 426 (S.C.J.), at para. 32 (where the offer was not signed by counsel); Dunn v. Shaw, 2014 ONSC 3208 (S.C.J.), at para. 8 (where the offer was not signed by the party); and Spurgeon v. Spurgeon, 2016 ONSC 1417 (S.C.J.), at para. 20. (where the offer was not signed by the party). [15]: Legal Aid Ontario, Legal Aid Ontario: Tariff and Billing Handbook, (updated July 2015), Chapter 6: Costs and Contributions, para. 2.1, p. 6-2. [16]: Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435 (S.C.J.), at paras. 5-25. The decision in Ramcharitar has been judicially considered at least 69 times. [17]: Smith v. Smith, [2008] O.J. No. 1674, 56 R.F.L. (6th) 148 (Ont. S.C.J.), at para. 19 [18]: El Feky v. Tohamy, 2010 ONCA 778, [2010] O.J. No. 6002 (C.A.), at para. 1 [20]: Legal Aid Services Act, S.O. 1998, c. 26 [21]: Fothergill v. Fothergill, [1973] 1 O.R. 708 (Ont. H.C.) [22]: Cropper v. Cropper, [1974] O.J. No. 477 (QL) (C.A.) [23]: O’Sullivan v. Lindley, [2000] O.J. No. 3965 (QL) (C.J.) [24]: Foran v. Foran, [2001] O.J. No. 430 (QL) (S.C.J.) [25]: Ragin v. Ven-Cor Vending Distributors Ltd., [2001] O.J. No. 3763 (QL) (S.C.J.) [26]: Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.J. No. 597 (QL) (S.C.J.) [27]: Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 921 (QL) (S.C.J.) [28]: Wasserman, Arsenault Ltd. v. Sone, [2002] O.J. No. 3772 [29]: Turczinski v. Dupont Heating (S.C.J.), released June 28, 2002 [unreported] [30]: Nairn v. Lukowski, [2002] O.J. No. 2680 (QL) (S.C.J.) [31]: The Legal Aid Services Society of Manitoba Act, R.S.M. 1987, c. L105 [32]: Alvarez v. Smith, [2008] O.J. No. 941 at para. 17 to 19