Court File and Parties

Court File No.: 39/15 Date: 2016-05-10 Ontario Court of Justice

Applicant: Kevin William Renaud Applicant Counsel: J.J. Avery

Respondent: Michelle Lynn Renaud Respondent Counsel: Tanya McNevin

Heard: In chambers

Costs Endorsement

Background

[1] On August 11, 2015, Justice Ross made a final order that included a provision granting the Respondent access to her child during the 2015 Thanksgiving long weekend.

[2] The Applicant, who is the child's father, did not want this access to take place. He started a motion to change relying upon rule 14(4.2).

[3] The Respondent brought a contempt motion as a result of her not having the child on the 2015 Thanksgiving long weekend.

[4] In response to the 14(4.2) motion, the Respondent brought a motion to dismiss it on the basis that the Court was functus officio (the functus motion).

[5] On April 14, 2016, reasons were released on the Respondent's motion to dismiss the 14(4.2) motion to change. The Respondent was successful. The 14(4.2) motion to change was dismissed.

[6] Counsel were given the opportunity to file brief costs submissions. They have done so, though Ms. Avery chose to ignore my direction to limit them to three pages double-spaced and instead provided six pages.

[7] The Respondent seeks costs fixed in the amount of $15,239.59 all inclusive. I read the Applicant's submission to be that no costs should be awarded.

Legal Consideration

[8] A judge's discretion to award costs in a family case is subject to the discretion provided for in the Family Law Rules.

[9] Rule 24(1) creates a presumption that a successful party is entitled to costs.

[10] An award of costs, however, is subject to the factors listed in rule 24(11), a consideration of whether a party engaged in unreasonable conduct (rule 24(4)), bad faith (rule 24(8)), and offers to settle (rule 18(14)). As well, the Court must consider the reasonableness of the costs sought by the successful party.

[11] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal stated that the 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.

[12] In Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.J.), the court considered the costs award scheme under the rules and commented at paragraph 20:

[T]he preferable approach in Family Law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issue and the result. There remains, I believe, a discretion under r.24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules' preeminent presumption and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.

[13] This approach has been endorsed by the Ontario Court of Appeal on a number of occasions, most recently in Berta v. Berta, 2015 ONCA 918.

Application of Legal Principles

[14] The Respondent was successful on the motion to dismiss the 14(4.2) motion to change.

[15] The Applicant argues that the contempt motion must also be considered in determining entitlement to costs. Because the three motions – the 14(4.2) motion to change, functus motion and contempt motion – are linked, they should be viewed as a continuum and not discretely.

[16] I disagree. While the 14(4.2) motion to change and the contempt motion arose from events leading up to and including the Thanksgiving 2015 weekend, different legal processes were engaged.

[17] The contempt motion was resolved by the Applicant providing make-up access.

[18] The functus motion dealing with a rule 14(4.2) motion to change was discrete and separate from the contempt motion.

[19] The Applicant also argues that it was the Respondent who acted recklessly and consistently incurred unnecessary costs and caused unnecessary court appearances. Again, I disagree with this submission. The Respondent was consistent in wanting to have her motion to dismiss dealt with as quickly as possible.

[20] The Applicant argues that the 14(4.2) motion to change was dismissed on a matter of jurisdiction and not the merits, and therefore, somehow this should vitiate entitlement to costs. I do not accept this argument. This is not a relevant consideration to the issue of costs of the functus motion. The motion resulted in the dismissal of the applicant's 14(4.2) motion to change.

[21] I find that the presumption that the Respondent is entitled to costs has not been displaced.

[22] A consideration of the 24(11) factors follows.

Importance, Complexity or Difficulty of the Issues

[23] The procedure adopted by the Applicant in bringing a motion to change by relying upon rule 14(4.2) was most unusual. Rule 14 deals with requests for temporary orders. Rule 15 specifically provides for motions to change final orders.

Ms. Avery in her written submissions stated that the issue of functus officio is "not such well-established law" and that it is "discretionary in many aspects and case law illustrates flexibility other courts have applied to the doctrine." No authority for these propositions was provided. The law with respect to the doctrine of functus officio was clear. Cases of this nature do not appear to arise very often. That does not make the doctrine "not well settled." From the cases provided on the functus motion I am not able to agree that the doctrine of functus officio is not well-established. The issue was not complex but one that is not often encountered.

I find that the motion was important because it would effectively end the process brought by the Applicant.

Reasonableness or Unreasonableness of Each Party's Behaviour

[24] When considering if a party acted reasonably, rule 24(5) directs the Court to consider if an offer to settle was made and the reasonableness of any offer to settle. I was not provided with any offers to settle made by the parties on this motion. Except that no offers are exchanged, I find that neither party otherwise acted unreasonably in relation to the issues on this motion.

The Lawyer's Rates

[25] Ms. McNevin claims costs based on her hourly rate of $200.00. This is a reasonable rate for a lawyer with five years experience.

The Time Properly Spent on the Case

[26] The time properly spent on the case:

a. The Respondent claims 19.3 hours to review the 14(4.2) motion and prepare and file the functus motion. The facts marshalled for the functus motion were not complex or extensive. Neither was the applicable law. This seems somewhat excessive.

b. 12.15 hours in client communication on this motion also seems excessive given the nature of the motion.

c. Communication with opposing counsel was docketed at 5.25 hours. This seems appropriate.

d. Preparation of facta, briefs of authority and legal research, 6.2 hours, was appropriate having regard to the issues raised.

e. 9 hours for court attendances and attempts to settle, was high in the circumstances of this case.

A review of the bill of costs discloses that some court appearances claimed should not be included. Sub-rule 24(10) provides that costs are to be determined in a summary manner at each step in a case by the presiding judge. A step in a case is one of the discrete stages recognized by the rules. I am not to deal with requests for costs that were addressed or should have been addressed at those prior steps in the case. The Respondent's bill of costs includes court attendance on October 21, 2015, December 16, 2015, and February 5, 2016. Costs for these attendances may not now be considered.

f. Review of endorsement and preparation and review of costs submissions: 3.3 hours also is not unreasonable.

[27] The total hours claimed of 55.40 hours is excessive for this motion. I did not receive a bill of costs from the applicant that might have assisted in determining the reasonable amount of time spent on the functus motion.

Expenses Properly Paid or Payable

[28] These expenses were necessarily and reasonably incurred.

Any Other Relevant Matter

[29] The Respondent claims $2,500.00 for lost wages and travel expenses. A self-represented litigant is entitled to recover personal expenses such as salary and other benefits lost while attending court. No authority was provided why such expenses should or should not be recoverable by a party who was represented. Even if there is authority to award costs as requested to a party who was represented by counsel I would not do so in this case. Militating against this claim is a lack of detail as to how this sum was arrived at by the Respondent. Also, the Respondent did not explain why attendances at court could not have been by way of teleconference.

[30] I do not find evidence of bad faith.

[31] I have also considered Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] OJ No. 2634 (Ont. C.A.), which provides that when assessing costs it is not simply a mechanical exercise of multiplying hours spent and time charged. Costs must be proportional to the issue and outcome. They must also be fixed in an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances of the case.

Order

[32] Taking into account all of these considerations, an Order will go as follows:

a) the Applicant shall pay to the Respondent costs fixed in the amount of $6,250.00;

b) the costs awarded in favour of the Applicant as against the Respondent on April 20, 2016, in the amount of $2,200.00 may be credited by the Applicant as against these costs ordered; and

c) the balance of costs owing under this Order after crediting the Applicant with costs ordered on April 20, 2016, shall be paid at the rate of $400.00 per month starting August 1, 2016. However, if the Applicant is more than 30 days late in making any of these payments, the entire amount of costs remaining owing shall become immediately due and payable.

Original signed and released

Justice Barry Tobin

Date released: May 10, 2016