ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-09-0111
DATE: 2012-02-02
B E T W E E N:
NICOLE BRIAND
Michael Cupello , for the Applicant
Applicant
- and -
EDGAR BRIAND
unrepresented ,
Respondent
HEARD: By way of written submissions.
Mr. Justice D.C. Shaw
Decision on Costs
[ 1 ] This is a decision on costs. The trial of this case was heard over the course of two days.
[ 2 ] The applicant, Nicole Briand was represented by counsel. The respondent, Edgar Briand, was represented by counsel during much of the case but he was not represented at trial.
[ 3 ] Ms. Briand claimed spousal support, consisting of:
a) periodic support of $299 per month for a total of 29 months;
b) the sum of $3,500 for the cost of braces which she claimed would have been covered by Mr. Briand’s extended health care plan, if he had not removed her from his plan after separation; and
c) the sum of $1,908 for legal fees and disbursements incurred by Ms. Briand in connection with the purchase of a home after the separation.
[ 4 ] Mr. Briand delivered an Answer and Claim by Respondent. The Claim by Respondent contained only a claim for costs.
[ 5 ] Ms. Briand claimed that she and Mr. Briand cohabited continuously from the end of May 2005 until January 9, 2009 and that they were therefore spouses as defined by s. 29 of the Family Law Act . Mr. Briand claimed at trial that the relationship was only that of landlord tenant.
[ 6 ] I found that the parties did cohabit. I found that the cohabitation was for more than three years and that Ms. Briand met the definition of spouse in s.29 of the Family Law Act .
[ 7 ] I determined that Mr. Briand should pay Ms. Briand support by way of a lump sum payment of $6,000. I took into consideration the short length of the relationship, the respective incomes of the parties during the 20 months after separation, the financial needs and abilities of the parties, the Spousal Support Advisory Guidelines , the fact that Ms. Briand was seeking time limited support, the advantages to Ms. Briand of living in Mr. Briand’s house for several months after separation, and Mr. Briand’s submissions that if support was ordered, it should be at the mid range of the Guidelines .
[ 8 ] I did not award Ms. Briand, directly, the $3500 she requested for the cost of braces or the $1,908.20 for legal fees. Instead, I took those factors into account in setting the lump sum award of $6000. I also took into account the fact that Ms. Briand took many of the contents in the house belonging to Mr. Briand and that she left Mr. Briand with significant debt.
[ 9 ] Ms. Briand requests cost of $12,500 plus HST.
[ 10 ] Her counsel presents a Bill of Costs showing actual fees of $22,207.52, based largely on 87 hours of time incurred by Mr. Cupello, at an effective hourly rate of $236.32, for a total of $20,559.52, plus disbursements of $453.08.
[ 11 ] The time shown in the Bill of Costs relates to the entire involvement of Mr. Cupello’s firm on this file, starting January 14, 2009. The application was not filed until April 22, 2009.
[ 12 ] The Bill of Costs includes time incurred with respect to conferences on July 29, 2009, October 7 2009 and June 4, 2010. No costs were awarded after these conferences. Rule 24(10) requires a judge who heard each step to summarily deal with the issue of costs. If costs of a step are not ordered, and the record is silent on the issue, the presumption is that the step was concluded without costs. Steps include conferences. In Biant v. Sagoo 2001 28137 (ON SC) , [2001] O.J. No. 3693 (S.C.J.), at paras 3-5 , Perkins J. held that because of rule 24(10), he had no jurisdiction as a trial judge to deal with the costs of a previous trial management conference and a motion. He held that the judge presiding over those steps prior to the trial must make any disposition of the costs of those steps. He stated that there was nothing in the Rules that allowed him to award costs where the presiding judge had not done so.
[ 13 ] The starting point in setting costs in family law matters is rule 24(1):
24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[ 14 ] Rule 24(11) sets out the factors which must be considered in awarding costs:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness 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 and signatures of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter
[ 15 ] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act , which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[ 16 ] In C.A.M. v D.M., 2003 18880 (ON CA) , [2003] O.J. No. 3707 (C.A.) at para. 40 , Rosenberg J.A. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act , but that they have not, however, completely removed the court’s discretion. I note that rule 24(11) (f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act , there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[ 17 ] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice ( Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[ 18 ] In Zesta Engineering Ltd. v. Cloutier , 2002 25577 (ON CA) , [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[ 19 ] While Boucher and Zesta Engineering are not family law cases, I accept that the principles enunciated above are applicable to family law matters.
[ 20 ] Ms. Briand’s application contained numerous claims, including a declaration of a constructive trust in her favour in the home of Mr. Briand, to the extent of $45,000. At the conclusion of trial, Mr. Cupello advised that Ms. Briand’s claim was limited` to spousal support. Ms. Briand had some, albeit modest, success on this issue.
[ 21 ] The importance of the support issue can be measured, in part, by the amount claimed for support, which totaled slightly over $14,000, and the amount awarded, namely, $6000.
[ 22 ] I consider that Mr. Briand’s behaviour in the case was less than reasonable. His evidence about the issue of cohabitation, that it was a landlord and tenant relationship, was contradicted by his own pleading, which described it as a conjugal relationship and one of cohabitation.
[ 23 ] Mr. Cupello’s effective hourly rate shown in his Bill of Costs is reasonable for a lawyer of his experience.
[ 24 ] I have referred to the fact that the time claimed by Mr. Cupello includes time spent on steps for which costs cannot be awarded at this stage.
[ 25 ] The relatively small amount awarded to Ms. Briand is a relevant factor in determining costs. The amount of costs should not be out of reasonable proportion to the amount of support awarded.
[ 26 ] In my opinion, having regard to the factors discussed above, in the context of the particular facts of this case, it would be fair and reasonable to award Ms. Briand costs in the sum of $5,500, inclusive of HST and disbursements, payable within 30 days.
The Hon. Mr. Justice D.C. Shaw
Released: February 2, 2012
COURT FILE NO.: FS-09-0111
DATE: 2012-02-02
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: NICOLE BRIAND Applicant - and – EDGAR BRIAND Respondent DECISION ON COSTS Shaw J.
Released: February 2, 2012
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