Court File and Parties

Date: February 16, 2018

Court File No.: D46769/09

Ontario Court of Justice

Between:

MARK JOHN JACKSON

RICHARD TEICHER, counsel and KATRINA KAIRYS, law student, for the APPLICANT

APPLICANT

- and -

CASSANDRA ELIZABETH BOBBIE

ACTING IN PERSON

RESPONDENT

Heard: February 15, 2018

Justice: S.B. Sherr

Costs Endorsement

[1] On February 15, 2018, the parties agreed to the dismissal of the respondent's (the mother's) motion to change this court's parenting order, regarding the parties' 13-year-old son (the child), dated March 2, 2009 (the existing order). Their agreement was subject to the right of the applicant (the father) to seek his costs of the proceeding.

[2] The father seeks his costs of $4,195.80 against the mother arising out of his motion to enforce the existing order and the dismissal of the mother's motion to change. The mother asks that no costs be ordered.

Legal Framework for Costs

[3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.), 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.

[4] 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, [2000] O.J. No. 330 (SCJ-Family Court).

Facts

[5] The existing order grants the parties joint custody of the child with a week-about parenting schedule.

[6] The father moved in June, 2017 to enforce this order, after the mother unilaterally restricted his access to the child. The mother opposed this motion.

[7] On July 7, 2017, the court enforced the existing order and directed the mother to comply with it. The mother was instructed to bring a motion to change if she felt that a change in the parenting arrangement was warranted (as opposed to unilaterally changing the order). The case was adjourned to ensure compliance with the order. Court staff were directed to have any motion to change issued by the mother returnable on the return date of the enforcement motion. Costs of the motion were reserved.

[8] The mother issued her motion to change the existing order on September 14, 2017. She sought an order that the child live primarily with her.

[9] At a case conference held on September 20, 2017, a referral was made to the Office of the Children's Lawyer.

[10] The Office of the Children's Lawyer appointed counsel for the child. The child's views and preferences were to make no changes to the existing order.

Success and Presumption of Costs

[11] The court finds that the father was the successful party in this case. He was successful in enforcing the existing order and the existing order was not changed, as requested by the mother.

[12] The mother did not rebut the presumption that the father is entitled to costs.

Factors in Determining Costs

[13] 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.

Importance, Complexity, and Difficulty

[14] The case was important for the parties. It was not complex or difficult.

Reasonableness of Behaviour

[15] Both parties acted reasonably in the case.

[16] The court accepts the mother's submission that she acted out of concern for her son. She agreed to the withdrawal of her motion to change after learning that her son wanted no change to the parenting plan. She also complied with the existing order, once directed to do so on July 7, 2017.

Settlement Offers

[17] Both parties attempted to resolve the case by making offers to settle on February 9, 2018. They agreed that the motion to change should be dismissed and that the existing order should continue to be operative, but they disagreed on the costs issue. The father's offer required the mother to pay $2,500 in satisfaction of his costs. The mother offered to pay the father $500, with the provision that if it was not accepted by certain dates, the father would be required to pay her costs on an increasing basis.

[18] The offers to settle were made very late in the case.

[19] The father's offer to settle was more reasonable than the mother's.

Lawyer's Rates and Time

[20] The father was represented by a staff lawyer and law students from Downtown Legal Services. This is a Legal Aid clinic. Most of the legal work at the clinic is done by the law students, supervised by the staff lawyer. The father submitted that Downtown Legal Services does not docket their time or bill their clients.

[21] The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (S.C.J.) at para. 25, and Alvarez v. Smith, [2008] O.J. No. 941 at para. 17-19.

[22] The hourly rate claimed by the supervising lawyer for the father ($360 per hour) is reasonable. The hourly rate claimed for the law students who worked on the file for the father ($39.60 per hour) is also reasonable and consistent with the rate allowed in Ganie v. Ganie, 2015 ONSC 2991.

[23] In Aucoin v. Langdon, 2016 ONCJ 755, I wrote that if Downtown Legal Services wishes to maximize costs claims made on behalf of its clients, it is incumbent on it to keep accurate docketing records, including:

a) The service provided for the client.

b) The time spent on the service provided.

c) Who provided the service, and whether the person is a lawyer or a law student.

d) The hourly rate claimed for the person providing the service.

[24] Downtown Legal Services did much better with this costs submission. The bill of costs sets out the work performed on the file, whether a lawyer or law student provided the service and hourly rates. The bill of costs still only set out global periods of time for the work done, without a breakdown of the billing. This makes it somewhat difficult for the mother and the court to assess whether the time spent is reasonable.

[25] The time claimed in the father's bill of costs for preparing for and attending at the enforcement motion in the bill of costs appears to be proportionate.

[26] The father claimed time for preparation and attendance at the case conference held on September 20, 2017. Costs were not ordered or reserved for this appearance, so this time claimed will not be allowed. 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, [2005] O.J. No. 5715 (OCJ). 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.

[27] The balance of the time claimed in the father's bill of costs for dealing with the mother's motion to change also appears to be proportionate.

Proportionality of Costs

[28] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (Ont. C.A.), and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. 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.

Ability to Pay

[29] The court considered the mother's ability to pay the costs order. See: MacDonald v. Magel (2003), 67 O.R. (3d) 181 (Ont. C.A.). The mother earns about $32,000 per annum. She said that she incurred thousands of dollars in legal fees for two lawyers she retained on the case. However, litigants are responsible for the positions that they take. See: Heuss v. Surkos, 2004 ONCJ 141. While ability to pay costs is a factor to consider, it does not insulate the mother from costs liability. See: Snih v. Snih. The court will address the mother's difficulty in paying costs by permitting her to pay the costs order over 2 years.

Order

[30] Taking into account all of these considerations, an order shall go as follows:

a) The mother shall pay the father's costs fixed in the amount of $3,000 inclusive of fees and disbursements.

b) The mother may pay these costs at the rate of $125 per month, starting on March 1, 2018.

[31] The court commends the mother and Ms. Kairys on the quality of their costs submissions.

Released: February 16, 2018

Justice S.B. Sherr