Court Information

Court: Ontario Court of Justice at 7755 Hurontario Street, Brampton, ON

Date: December 15, 2017

Justice: L.S. Parent

Parties and Counsel

Applicant: Shane Doucette (Present) Counsel: Abby Vimal (Present)

Respondent: Rachel Meyer (Present) Counsel: Avi Baratz (Present)

Endorsement on Costs

Background

[1] On October 19th, 2017, I heard two (2) motions on the issue of jurisdiction relating to this matter.

[2] The motion brought by Mr. Doucette sought a declaratory order that this court, in the Region of Peel, has jurisdiction over the claims raised by both parties in their respective pleadings relating to their child.

[3] The motion brought by Ms. Meyer sought an order transferring the proceedings, as described above, to the Ontario Court of Justice in the Region of Niagara.

[4] Following submissions and for oral reasons given, I granted Mr. Doucette's motion and denied Ms. Meyer's motion.

[5] Following my decision, discussions between the parties, with the assistance of their counsel, resulted in a consent signed by the parties for a temporary without prejudice order for access and child support.

[6] I granted this consent order and also set a timetable for counsel to provide written submissions on the issue of costs.

[7] Ms. Vimal, on behalf of Mr. Doucette, served and filed written submissions on November 10th, 2017, as specified in my endorsement.

[8] Mr. Doucette claims legal fees, disbursements and HST of $11,435.60 incurred by him regarding the motions. Mr. Doucette claims full recovery costs as he submits that his position was accepted regarding both motions and thereby he was fully successful.

[9] Mr. Baratz, on behalf of Ms. Meyer, served and filed written submissions on November 22nd, 2017, as specified in my endorsement. These submissions seek a minimal costs order on the basis of his client engaging in reasonable behaviour throughout the litigation, her outstanding claim for child support prior to the October 19th, 2017 consent order, and her financial circumstances as it related to her ability to pay costs.

[10] Ms. Vimal filed reply submissions on November 30th, 2017, as specified in my endorsement, whereby she confirmed Mr. Doucette's position on costs.

Offers to Settle

[11] Submissions by both counsel did not reference any other offers to settle. Ms. Vimal's submissions specifically referenced that no offers to settle were exchanged between the parties.

Rule 24

[12] Rule 24 of the FLR deals with the issue of costs. Subrule 24(1) provides that there is a presumption that a successful party is entitled to costs.

[13] There is no doubt that Mr. Doucette was the fully successful party as a result of my decision on October 19th, 2017.

[14] Subrule 24(11) provides guidance to the court as to what factors the court shall consider, within its discretionary authority, in determining the issue of costs. I will review these relevant factors in the following paragraphs.

The Importance, Complexity or Difficulty of the Issues

[15] Submissions made on behalf of both parties claim that the issues before the court were important to both parties in this matter. I accept these submissions.

[16] The issue of jurisdiction was raised at the initial case conference held before me on July 24th, 2017.

[17] At the case conference held on August 23rd, 2017, counsel on behalf of both parties confirmed that jurisdiction remained a "live issue". Accordingly, leave was given to the parties to serve and file their respective motion materials regarding this issue and a hearing date of October 19th, 2017 was scheduled.

[18] I further accept that the issue of jurisdiction was important as it clearly needed to be determined prior to the substantive issues being dealt with.

The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[19] Mr. Doucette's position is that Ms. Meyer was unreasonable throughout this matter as she could have conceded the issue of jurisdiction at the First Appearance date on June 8th, 2017 or subsequently, at the case conferences held on July 24th and August 23rd, 2017.

[20] Counsel submits that the absence of this concession delayed the addressing of the substantive issues, namely custody, access and child support regarding their child.

[21] Ms. Meyer's position is that she did act reasonably throughout the proceedings. Counsel submits that Ms. Meyer did not refuse to concede the issue of jurisdiction. Specifically, counsel notes that Ms. Meyer was prepared to concede jurisdiction on a "temporary basis so the matter could move along and if it did not settle she would seek transfer at some point."

[22] Mr. Baratz further submits, on behalf of Ms. Meyer, that her opposition to Mr. Doucette's motion and seeking an order transferring these proceedings to the Region of Niagara had merit given that the evidence supported that Ms. Meyer had spent "months at a time" in this region with the child.

[23] After considering submissions made on behalf of both parties, I do not find that Mr. Doucette or Ms. Meyer acted unreasonably within the factors listed in Rule 25(5).

[24] The record is clear that neither party served offers to settle. However, as stated it is equally clear that the issue of jurisdiction needed to be determined prior to addressing the substantive issues in this matter.

[25] I am of the view that both parties displayed a reasonable approach to these proceedings by consenting to an order on the issues of access and child support immediately following my decision on the issue of jurisdiction.

The Lawyers' Rates

[26] The rate for Mr. Doucette's lawyer is $400.00 per hour. Given the experience of Ms. Vimal is in excess of thirteen (13) years of practice, this rate seems reasonable.

The Time Properly Spent on the Case

[27] Ms. Vimal has provided a Bill of Costs with her submissions. She indicates that she spent nineteen (19) hours in the preparation of the motion materials, which included a factum, research and submissions.

[28] There appears to be an error in the Bill of Costs in that it does not include any time indication for her docket entry of "Attendance at Motion and debriefing client". The entry however does indicate fees claimed of $2,400.00 which, based on counsel's hourly rate, equates to six (6) hours. This correction would result in twenty-five (25) hours being claimed on behalf of Mr. Doucette.

[29] Mr. Baratz has provided a copy of his docket entries with his submissions. He indicates that he spent twenty-two (22) hours in the preparation of the motion materials, which included a factum, research and submissions. Also, Mr. Baratz indicates an attendance time of five (5) hours at the hearing of the motions. Accordingly, the total time spent by Mr. Baratz on behalf of his client is twenty-seven (27) hours.

[30] Given the proximity in time spent by both parties, I could conclude that the times, as submitted on behalf of both parties, are reasonable and have been properly spent.

[31] After an examination of the dockets entries and Bill of Costs, I do find that some time allocations appear to be excessive, especially in the preparation of factums, on behalf of both parties. Although the issue of jurisdiction was important, it was not particularly complex in its legal analysis and presentation.

Expenses Paid or Properly Payable

[32] The disbursements claimed on behalf of Mr. Doucette total $120.00. I find that these disbursement for photocopying/printing and process server costs are reasonable.

Any Other Relevant Matter

[33] In determining the issue of costs, I am also mindful of submissions on behalf of both parties referenced that they are of limited means.

Conclusion

[34] In Serra v. Serra, 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

(a) to partially indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

[35] Subrule 2(2) of the Family Law Rules (FLR) requires that all cases before the court be dealt with "justly." The court's decision in Sambasivam v. Pulendrarajah, [2012] O.J. No. 5404 (Ont. C.J.), directed that this provision be read in conjunction with the relevant costs rules under the FLR.

[36] I have considered the written submissions on costs filed by both parties and taken into account the provisions of Rule 24 of the FLR. I find that Mr. Doucette is entitled to costs on a partial indemnity and not full recovery basis.

[37] In arriving at this determination, I am mindful that:

(a) Mr. Doucette is the successful party;

(b) There is an absence of evidence to support a determination that Ms. Meyer acted unreasonably and/or in bad faith during the litigation; and

(c) Mr. Doucette did not serve an offer to settle which could support a cost order on a full recovery basis.

[38] As previously stated, Mr. Doucette's claim, in hours, compares closely to the Ms. Meyer's total hours spent. The difference is in counsel's hourly rate charged. This, in my view, is important in considering the test that an award of costs should be reasonable and within the contemplation of the unsuccessful party. See: Boucher et al. v. Public Accountants.

[39] Considering all of the above factors and in the exercise of my discretion, I find that it is fair and reasonable in this particular case that there be an order that Ms. Meyer pay costs to Mr. Doucette fixed in the sum of $5,500.00 inclusive of fees, disbursements and HST. In my view, this amount adequately reflects the outcome of the case and the other objectives of the Family Law Rules with respect to an award of costs.

[40] Counsel for Ms. Meyer has submitted that it would be "unconscionable" to request that she pay costs, as submitted, to Mr. Doucette given that she has before the court a claim for child support which predates the consent order granted on October 19th, 2017. Counsel submits that the costs requested by Mr. Doucette will equal or perhaps exceed the monies he owes in child support.

[41] The claim for child support has not been determined by the court and therefore should not, in my view, impact the payment of costs unless consented to by the parties.

[42] Submissions on behalf of Ms. Meyer further indicate that she is on social assistance and is of limited means. There is no sworn financial information in the file in order to allow me to consider her entire financial circumstances other than the details submitted in the costs submissions.

[43] After a review of the submissions, I am of the view that allowing time for Ms. Meyer to satisfy the cost order is reasonable in the circumstances.

Order

[44] For the reasons stated above, an order will go requiring the Respondent/mother, Rachel Meyer, to pay costs of $5,500.00, inclusive of fees, disbursements and HST, to the Applicant/father, Shane Doucette, in the amount of $150.00 per month commencing January 15th, 2018 and on the 15th day of each month thereafter until fully paid unless agreed to otherwise in writing between the parties.

[45] This matter will proceed as scheduled, pursuant to my endorsement of October 19th, 2017, to an initial case conference on December 19th, 2017.

Justice L.S. Parent