ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS 11 3579 00
DATE: 20130117
BETWEEN:
Leanne Principato
Applicant
– and –
David Joseph Principato
Respondent
Shawn Campbell, for the Applicant
Aaron Franks, for the Respondent
HEARD: October 4, 2012 in Brampton
DECISION ON COSTS
r.d. gORDON j.:
Overview
[1] Mr. and Mrs. Principato are involved in acrimonious matrimonial proceedings. On April 26, 2012, prior to a case conference being held, Mr. Principato brought a motion claiming various heads of relief. Justice Van Melle determined there was not sufficient urgency to have the matter heard prior to a case conference and with respect to costs endorsed: “Costs of today are reserved”. Although it is not clear to whom those costs were reserved, counsel appear content that I determine those costs.
[2] The case conference did not produce agreement and on October 4, 2012 I heard motions by both parties dealing with custody, access, a proposed assessment and child support. In my endorsement dealing with the motions I invited written submissions on costs if the parties were unable to reach agreement.
[3] Not surprisingly, agreement has not been reached. I have now received written submissions from counsel in which they each seek an award of costs in the amount of $15,000.
Applicable Law
[4] Rule 24(1) of the Family Law Rules provides for the presumption that a successful party is entitled to the costs of a motion. Under Rule 24(6), where success in a step in a case is divided, the court may apportion costs as appropriate. Under Rule 24(4), a party’s presumptive entitlement to costs may be lost if the party has behaved unreasonably during the case.
[5] Once entitlement to costs has been established, Rule 24(11) sets out the factors to be considered when fixing the amount and includes the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of each party’s behaviour in the case, the lawyers’ rates, the time properly spent on the case and expenses properly paid, and any other relevant matter.
[6] In my view, other significant and relevant matters would include the reasonable expectation of the parties, and the concept of proportionality.
Discussion
[7] It is in the context of proportionality and the reasonable expectation of the parties that I feel compelled to comment on the Bills of Costs submitted by counsel.
[8] It is no secret that the cost of legal services is a significant societal concern. Legal costs have escalated to a point where many, if not most, middle class Canadians cannot afford to litigate. The problem is particularly acute when family disputes bring parties before the court to resolve their differences. Various initiatives have been undertaken in an attempt to address the issue, including importing the concept of “proportionality” into the litigation process. This concept of proportionality is meant to recognize that availability of certain actions does not equate to the appropriateness of those actions. At its most basic, the idea is to have litigants weigh the costs of proceeding in a certain manner against the benefit to be gained. If the potential benefit is great, it may be appropriate to incur considerable cost to attain it. If the potential benefit is marginal or low, it may warrant the allocation of fewer resources. Important to this cost-benefit analysis is a consideration of the manner in which a benefit may be pursued and the appropriate allocation of a litigant’s resources.
[9] In the case before me, the parties are of very limited means. Their respective incomes are very modest. Their only significant asset is the proceeds from the sale of the matrimonial home amounting to less than one hundred thousand dollars.
[10] Notwithstanding the litigation between them is essentially in its infancy, that is, it has progressed through only a case conference and the initial motions described above, the parties have incurred collective costs in excess of $92,000. Those costs have been incurred to deal with issues which I accept are important to the parties, but which are not particularly complex. When I consider proportionality in the context of the means of the parties, I must seriously question whether the motions brought forward in this case required the filing of lengthy facta, casebooks, and affidavits of the length and detail contained in these motion materials. The manner in which this relief has been sought is completely out of proportion to the litigants’ resources.
[11] When parties are well able to afford “Cadillac service” throughout their proceedings, are aware of the costs to be incurred and are willing to accept the risks, that is one thing. When the parties cannot afford that service, are forced to use basically all of their resources to minimally advance the litigation, and in the end will be left with few, if any, of the assets they worked so hard to accumulate, that is another situation entirely. In my view, counsel has a responsibility to engage their clients in the proportionality analysis. Moreover, I would suggest they have a professional obligation to conduct litigation in a manner which reflects the means of the client and the issues which present. I accept that some clients will wish to proceed in a manner that does not reflect this concept of proportionality. Perhaps that is what happened in this case. When that happens, counsel will have to reflect upon whether they wish to act for a client who will not follow their advice.
Conclusion
[12] With respect to the motion returnable April 26, 2012, it is clear the Respondent met with no success. The presiding judge determined the motion was not urgent and granted no relief. I am not satisfied that the Applicant conducted herself unreasonably such as to disentitle her to costs and as such, it is appropriate that the Applicant receive an award of costs relative to that motion. When I consider the factors set out in Rule 24(11), the principle of proportionality and what might reasonably have been expected on a motion of this nature, an appropriate amount of costs is $4,000 payable by the Respondent.
[13] With respect to the motions returnable on October 4, 2012, there was divided success. The Applicant was successful in obtaining temporary sole custody of the children and child support. The Respondent was successful in getting midweek overnight access, having an assessment ordered and limiting child support to an amount less than requested by the Applicant. There were no offers made in which the offeror obtained an order as favourable or more favourable than the offer. Given the divided success it is appropriate that each party bear their own costs relative to these motions.
Mr. Justice R.D. Gordon
Released: January 17, 2013
COURT FILE NO.: FS 11 3579 00
DATE: 20130117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Leanne Principato
Applicant
– and –
David Joseph Principato
Respondent
DECISION ON COSTS
R.D. Gordon J.
Released: January 17, 2013