Court File and Parties
Court File No.: D71667/14 Date: 2015-08-31
Ontario Court of Justice
Between:
DIANE DARESI Applicant
- and -
JOHN DULIBAN Respondent
Counsel:
- Paul Rausch, for the Applicant
- Acting in Person, for the Respondent
Heard: August 6, 2015
Justice: S.B. Sherr
Costs Endorsement
Part One – Introduction
[1] The parties have consented to transfer this case to the Superior Court of Justice as they have significant property issues to be determined.
[2] The applicant (the mother) seeks her costs of this proceeding in the sum of $17,450.51. The respondent (the father) submits that no costs should be payable.
Part Two – Litigation History
[3] On September 19, 2014, the mother issued this application claiming custody of the parties' two children, an order that the father have no access to the children and a restraining order.
[4] On September 22, 2014, on a without notice motion, Justice Carole Curtis made an order granting the mother temporary custody of the children, no access to the father and a temporary restraining order.
[5] On November 7, 2014, the case was adjourned until January 28, 2015.
[6] The mother's lawyer attended at court on January 28, 2015. He advised the court that he had been contacted by the father's lawyer the day before and they had consented to adjourn the matter. The father was present, without a lawyer, and indicated that he did not agree to an adjournment. The parties were at court for 90 minutes attempting to sort this out. The court adjourned the case until February 12, 2015, gave the father filing deadlines to serve and file his responding motion material and reserved the issue of costs.
[7] The father did not file responding material within the set timelines. On February 12, 2015, he was given new timelines to file his material. Costs were reserved.
[8] The father subsequently moved to terminate the without notice restraining order and sought access to the children. He also sought the appointment of the Office of the Children's Lawyer. On April 24, 2015, the court made a referral order to the Office of the Children's Lawyer, but otherwise continued the September 22, 2014 order of Justice Curtis.
[9] The father then brought a motion for DNA testing. He did not attend on the return date of May 26, 2015. His motion was dismissed. The court ordered that the father could not bring any further motions without prior leave of the court.
[10] The mother then moved to transfer the case to the Superior Court of Justice and have the issue of her costs addressed. This was heard on August 6, 2015. The father consented to the request to transfer the case to the Superior Court of Justice and opposed the request for costs.
Part Three – Analysis
[11] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.
[12] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe.
[13] The parties submitted no offers to settle. This court has often written that it will usually be unreasonable behaviour to fail to make an offer to settle. See: Klinkhammer v. Dolan and Tulk, 2009 ONCJ 774; H.F. v. M.H., 2014 ONCA 86.
[14] The mother was the successful party on the motions before the court. On the first motion she was able to maintain the September 22, 2014 order of Justice Curtis (although the father was successful in having the case referred to the Office of the Children's Lawyer). The father's second motion was dismissed when he did not attend on the return date.
[15] The father did not rebut the presumption that the mother is entitled to her costs of the two contested motions.
This is the first determination of costs issues, as costs were reserved on prior attendances.
[16] In making this decision, the court considered the factors set out in subrule 24(11), which reads as follows:
24(11) A person setting the amount of costs shall consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party's behaviour in the case;
(c) the lawyer's rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[17] The case is important for the parties. It is not complex or difficult.
[18] The mother acted reasonably in this case except for her failure to make an offer to settle. The father also did not make an offer to settle. He acted unreasonably by avoiding service of the application. On October 6, 2014, he emailed the mother, stating:
As for serving me, I assure you your date will come and go; it will never happen. You do not serve me, I serve YOU!
[19] The father caused additional cost by failing to meet filing deadlines. He also caused additional cost to the mother when he unreasonably refused to agree to the adjournment on January 28, 2015, that his lawyer had agreed to the day before. He acted unreasonably by bringing a motion and then not attending on the return date. The father submitted that he understood the case was withdrawn. There was no evidence to support this belief.
[20] The rates claimed by mother's counsel are reasonable for a lawyer with his skill and experience. The rates claimed on behalf of his law clerk were too high.
[22] The court reviewed the time claimed by the mother. She claimed time for steps that were not attributable to the motions and the associated adjournments of those motions. Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487. The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. See: Islam v. Rahman, 2007 ONCA 622.
[23] The court considered that the court can deal with costs that are not attributable to any steps in a case. This could include time spent for meetings with the client and reviewing and preparing pleadings and financial statements. See: Czirjak v. Iskandar, 2010 ONSC 3778. However, it is premature for this court to address these costs, as the determination of these costs depends on ultimate success - this has yet to be determined.
[24] Costs should also not be awarded for the August 6, 2015 appearance as the father reasonably agreed with the mother's request to transfer the case.
[25] The expenses claimed by mother's counsel are reasonable.
[26] The court considered the father's ability to pay costs. The parties' matrimonial home was sold and there are substantial funds being held in trust by the real estate lawyer. The father can pay this costs order.
[27] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:
However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize 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.
[28] Taking into account all of these considerations, the father shall pay the mother's costs, fixed in the sum of $10,000, inclusive of fees, disbursements and HST.
Justice S.B. Sherr
Released: August 31, 2015