Superior Court of Justice – Ontario
Court File No.: 8781/99
Date: January 7, 2014
RE: David Lee Jamieson, applicant
AND:
Tracy Elaine Jamieson, respondent
BEFORE: MITROW J.
COUNSEL:
David Lee Jamieson in person
Tracy Elaine Jamieson in person
HEARD: Written submissions filed
ENDORSEMENT ON COSTS
INTRODUCTION
[1] After a three day trial, my reasons for judgment were released August 28, 2013.
[2] The main issue at trial was the claim of the respondent (“Ms. Jamieson”) for a variation of spousal support payable by the applicant (“Mr. Jamieson”) pursuant to a divorce judgment dated May 3, 2000. The trial also dealt with variation of child support but that issue proceeded mainly on consent as both parties agreed to the date for termination of child support and the only issue was the correct amount of child support which should have been paid based on the income of each party until the date that the child support terminated.
[3] The result at trial was that Mr. Jamieson was ordered to pay total support arrears of $56,445 (allocated $1,272 towards child support and $55,173 towards spousal support). Mr. Jamieson was ordered to pay the support arrears at the rate of $600 per month commencing May 1, 2013 until paid.
[4] Mr. Jamieson was also ordered to pay ongoing spousal support in the amount of $1,000 per month commencing May 1, 2013 (this amount being in addition to the $600 monthly payment towards support arrears). Given the evidence that Mr. Jamieson would likely be in a position to retire in the not too distant future, the final order included a provision that if Mr. Jamieson brings a proceeding to vary spousal support as a consequence of his retirement, then the fact that his retirement was foreseeable at the date of the order shall not form the basis of any defence to such a proceeding.
[5] The trial order contained a direction permitting the parties to make written submissions on costs, the submissions to be forwarded to the trial coordinator. Pursuant to this order, Ms. Jamieson served and filed her costs submissions, Mr. Jamieson served and filed his responding costs submissions and Ms. Jamieson then filed her reply submissions.
[6] The last of the parties’ costs submissions (being Ms. Jamieson’s reply submissions) were served on October 6, 2013 and were filed with the trial coordinator at Chatham on October 7, 2013.
THE POSITION OF EACH PARTY ON THE ISSUE OF COSTS
[7] As noted in the reasons for judgment, each party was self-represented at trial. Each party continued to be self-represented in relation to written costs submissions.
[8] As reflected in the reasons for judgment, the current proceeding was started via Ms. Jamieson’s motion dated November 23, 2007 initially returnable March 4, 2008, seeking a variation of child support and spousal support based primarily on the increase in Mr. Jamieson’s income. The reasons for judgment also reflected that this case took approximately five and a half years to come to trial and that both parties at various times had lawyers and, from the record, it appeared that the case was traversed during assignment court on a number of occasions.
[9] As reflected in the reasons for judgment, interim orders were made on April 15, 2008 and May 4, 2010 in relation to the variation proceeding commenced by Ms. Jamieson.
[10] Ms. Jamieson’s submission in relation to costs was that she should be reimbursed for legal fees and expenses that she had incurred while she was represented by legal counsel.
[11] Ms. Jamieson summarized fees and expenses that she was claiming as follows:
Carscallen, Reinhart, Mathany, Maslak
Rhodes Law Firm
Joanne Schatz Law Office
Langford Law Offices
Expenses
Bailiff Services
Photocopying and Filing
Total Claimed:
$1,396.00
$7,994.62
$183.75
$8,936.22
$240.00
$474.82
$19,225.41
[12] Ms. Jamieson did not advance any claims for costs to compensate her for the time and effort that she spent in preparing and presenting her case while self-represented. Ms. Jamieson’s costs submissions were focussed on seeking an order to reimburse her for legal fees and expenses that she had incurred in retaining the four legal firms mentioned above. In his written costs submissions, Mr. Jamieson submits that Ms. Jamieson’s first lawyer, Mr. Maslak, was terminated in September 2008 and replaced with Mr. Rhodes in January 2009. Mr. Jamieson also submits that the trial set for January 2011 did not proceed because Ms. Jamieson had not filed financial statements and had not provided other relevant disclosure and that this resulted in the trial being adjourned to March 2011. Mr. Jamieson submits that in March 2011 the matter did not proceed because of Ms. Jamieson’s failure to provide financial disclosure, resulting in a further adjournment, and that in April 2011 Mr. Rhodes was terminated as Ms. Jamieson’s lawyer.
[13] Mr. Jamieson submits that his lawyer, Mr. Bowsher, was unable to respond to an offer to settle dated April 17, 2012 (referred to in more detail below), which was forwarded when Mr. Langford was retained by Ms. Jamieson, because Mr. Jamieson and his lawyer were still awaiting various financial disclosure from Ms. Jamieson. Mr. Jamieson then states in his written submissions that he is “submitting” legal costs of $11,695 that he incurred while Mr. Bowsher was representing him. I infer from this submission that Mr. Jamieson is seeking an order for costs in that amount against Ms. Jamieson.
[14] In his submissions, Mr. Jamieson blames Ms. Jamieson for the delay in having this matter move forward.
[15] In her reply submissions, Ms. Jamieson disputes the allegations that she delayed this matter and in turn casts blame on Mr. Jamieson for failing to move this matter forward.
[16] At this point it is necessary to deal with a collateral issue raised by both parties in their costs submissions. This issue related to Mr. Jamieson’s obligation to name Ms. Jamieson as beneficiary on his employer life insurance policies. This issue is dealt with in my reasons for judgment at para. 8 as follows:
[8] An issue was raised by Ms. Jamieson as to Mr. Jamieson’s apparent failure to comply with the final order requiring him to maintain Ms. Jamieson as the irrevocable beneficiary on life insurance he has available through his place of employment for so long as he has to pay either child support or spousal support. Prior to the conclusion of the trial, both parties advised the court that during the trial Mr. Jamieson had provided Ms. Jamieson with an executed irrevocable beneficiary designation as required and that Ms. Jamieson had forwarded same to the insurer.
[17] In her initial costs submissions, Ms. Jamieson submits that she “realized” following the trial that the beneficiary designation that was presented to her in court was actually a teacher’s pension plan designation form. Ms. Jamieson then accuses Mr. Jamieson of an attempt to “trick the court” and requests that the court consider whether Mr. Jamieson has engaged in “bad faith” conduct when dealing with costs.
[18] Mr. Jamieson submits the change of beneficiary was made correctly and attaches to his submissions what he states is proof of same. The attachment is a letter from the teacher’s pension plan dated May 22, 2013 indicating that his file has been updated to reflect Ms. Jamieson as the beneficiary.
[19] In her reply submissions, Ms. Jamieson deals further with the beneficiary designation issue and submits that the existing final divorce order required Mr. Jamieson to maintain Ms. Jamieson as the irrevocable beneficiary of such life insurance he has available to him through his employment so long as he is required to pay either spousal or child support. Ms. Jamieson submits that the beneficiary designation provided by Mr. Jamieson during the trial dealt with the teacher’s pension plan and had nothing to do with his court ordered obligation to name her as the beneficiary on life insurance available through his employer.
[20] As reflected in the reasons for judgment, during the trial the parties advised the court that this issue had been resolved. Ms. Jamieson informed the court that she had received the necessary designation beneficiary form from Mr. Jamieson. Accordingly, no further evidence was led on that issue and the actual change of beneficiary form received by Ms. Jamieson was not filed as an exhibit.
[21] Given the position of the parties at trial that Mr. Jamieson had apparently complied with the existing divorce order regarding the beneficiary designation on group life insurance, it is inappropriate to reopen this issue, now, under the guise of costs submissions. There is no evidentiary basis to permit the court, in dealing with costs submissions, to make findings regarding Ms. Jamieson’s allegation that Mr. Jamieson has in fact not complied with the beneficiary designation requirement contained in the existing divorce order.
[22] If Ms. Jamieson is of the view that the document provided by Mr. Jamieson to Ms. Jamieson during the trial was in fact not in compliance with the existing divorce order as it relates to the designation of Ms. Jamieson as a beneficiary of life insurance, then it is open to Ms. Jamieson to commence a fresh proceeding to enforce Mr. Jamieson’s obligation regarding life insurance as set out in the divorce order. If any such proceeding is started, it would be important to file with the court a copy of the executed beneficiary designation that was produced by Mr. Jamieson to Ms. Jamieson during the trial.
DISCUSSION RE: ISSUE OF COSTS
[23] Ms. Jamieson’s submissions made reference to two offers to settle forwarded on her behalf. The first offer is a letter dated June 6, 2011 from Ms. Jamieson to Mr. Bowsher (Mr. Jamieson’s lawyer) indicating that Ms. Jamieson is now prepared to continue with “settlement proceedings” and that a final out of court settlement “in the amount of $70,000” would be agreeable.
[24] The second offer included in Ms. Jamieson’s submissions is a formal offer to settle in accordance with r. 18 dated April 17, 2012 signed by Ms. Jamieson and her lawyer, Mr. Langford. In relation to spousal support, that offer requests a lump sum of $48,000 as a full settlement for retroactive and ongoing spousal support. This offer also contains provisions requiring Mr. Jamieson to designate Ms. Jamieson as irrevocable beneficiary of his life insurance provided through his employer, requiring Mr. Jamieson to designate Ms. Jamieson as beneficiary of health and medical benefits provided through his employment and also requiring Mr. Jamieson to ensure that Ms. Jamieson is named as the beneficiary of his survivor benefits under his teacher’s pension plan. The offer further provides that all other claims are dismissed and the offer provides, in relation to costs, that no costs are payable if the offer is accepted within 30 days but if the offer is accepted after 30 days, then Mr. Jamieson is required to pay to Ms. Jamieson costs on a partial indemnity basis from the date of the offer to the date of the acceptance of the offer.
[25] Neither party advised the court in their submissions of any offers to settle forwarded by Mr. Jamieson.
[26] I do find that Ms. Jamieson acted reasonably in attempting to put forth realistic offers to settle.
[27] However, neither offer in my view attracts the automatic costs consequences r. 18(14). I cannot find that the order at trial is as favourable or more favourable than either of Ms. Jamieson’s offers.
[28] In relation to the formal offer to settle, although the amount of $48,000 requested as a lump sum is less than the lump sum ordered by the court, the offer stipulated an immediate lump sum payment whereas the court order dealt with spousal support arrears being paid at the rate of $600 per month. The offer also dealt with additional matters including designation of beneficiary under the teacher’s pension plan and beneficiary designation under group medical plans and neither of those provisions were contained in the order made at trial.
[29] I have considered whether this formal offer to settle could be viewed, globally, as more favourable than the order because of the fact that the order contained an ongoing monthly support payment of $1,000 whereas the offer of $48,000 was inclusive of ongoing spousal support. At this point it is difficult to assess how long spousal support will be payable, as ongoing spousal support is always subject to a variation in the event of a material change in circumstances. Accordingly, even though I find that this offer does not attract the automatic cost consequences of r. 14(18), I do take this very reasonable offer into account.
[30] The earlier offer made by Ms. Jamieson to settle for $70,000 was more than the support arrears found owing at trial and did not contain any provision for paying the arrears over a period of time. In theory, if the ongoing spousal support continues for a sufficient period of time, it may well be that the total support payable under the order (meaning the total of all periodic spousal support and also the arrears) may exceed $70,000. However, there is still the issue of the offer requiring immediate payment rather than paying the arrears portion on a monthly basis. I find that although that offer does not attract the automatic cost consequences of r. 18(14), it is appropriate to take that offer into account when dealing with the issue of costs.
[31] Pursuant to r. 24(1), I find that Ms. Jamieson is the successful party and as such she is presumptively entitled to costs. Ms. Jamieson sought a variation of the divorce order to provide for increased spousal support and she was clearly successful. To the extent that there was any issue on the quantum of child support, Ms. Jamieson was also successful as the trial decision found there was a small amount of child support owing taking into account the incomes of the parties. I find there is no basis for any claim by Mr. Jamieson for costs to be paid to him by Ms. Jamieson.
[32] The basis of Ms. Jamieson being successful at trial, as set out in the reasons for judgment, is the fact that Mr. Jamieson’s income had increased dramatically from the time of the divorce judgment to the time of the commencement of the variation proceeding.
[33] In considering the factors set out in r. 24(11), this case was important to both parties and was of moderate complexity and difficulty.
[34] On the basis of the evidence at trial, I am unable to find that either party acted unreasonably. The parties’ written submissions on costs are in conflict and it is not possible from those submissions to make a finding that one party acted unreasonably. (I make no finding as to the conduct of either party in relation to the issue of the life insurance beneficiary designation, as that issue is outside the scope of the costs issue.)
[35] In relation to the lawyers’ rates (being the factor referred to in r. 24(11)(c)), the difficulty is that neither party provided copies of any of the lawyers’ bills referred to in their respective submissions. The lawyers’ rates were not disclosed by the parties.
[36] Similarly (in relation to r. 24(11)(d), which requires a court to consider the time properly spent on the case), the failure to provide copies of the lawyers’ accounts makes it difficult to assess this factor. In relation to expenses properly paid or payable (r. 24(11)(e)), I find that the expenses summarized by Ms. Jamieson are reasonable.
[37] Although Ms. Jamieson has not provided copies of her lawyers’ accounts, I note that Mr. Jamieson, in his written submissions, does not take issue with the amounts claimed to have been paid by Ms. Jamieson. Similarly, Ms. Jamieson takes no issue with the amount that Mr. Jamieson claims he paid his lawyer, Mr. Bowsher.
[38] The result is that neither party disputes that the other party incurred legal fees by hiring lawyers in this case.
[39] In considering the two offers made by Ms. Jamieson, I find that these offers show a genuine attempt by Ms. Jamieson to take a reasonable position in attempting to settle this case. I take into account that Mr. Jamieson did not refer the court to any offers that he made. On the conflicted information set out in the parties’ written submissions, I am not prepared to make a finding that Ms. Jamieson failed to provide information which thereby made it impossible for Mr. Jamieson to make an offer to settle. Having regard to the evidence at trial, I find there was insufficient evidence to justify a failure by Mr. Jamieson to submit an offer to settle.
[40] I have considered the very helpful analysis and summary of the law on the entitlement of a successful self-represented party to costs as discussed by Czutrin J. in Jordon v. Stewart, 2013 ONSC 5037, 2013 CarswellOnt 11295 (S.C.J.). While a self-represented litigant is entitled, in proper circumstances, to an award of costs to compensate that litigant for doing the work that a lawyer would normally do in preparing and taking a case to trial, I note, as discussed above, that Ms. Jamieson restricts her claim to being compensated for fees and disbursements that she paid to lawyers.
[41] While it would have assisted the court substantially for Ms. Jamieson to have filed copies of all of her lawyers’ bills, I also find that it would be unfair, in the circumstances, to withhold awarding costs to Ms. Jamieson solely on Ms. Jamieson’s failure to file those bills.
[42] In making an award of costs, the overriding principle is reasonableness and this requires the court to consider the expectations of the parties concerning the quantum of any costs award: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.) at paras. 52-54.
[43] Unfortunately, it is unclear from the submissions of the parties whether the amounts that each party paid to his or her lawyer included HST.
[44] Although the trial was held over three days, it is also important to note that portions of the trial were devoted to hearing from the parties what the issues were, including asking the parties to define the issues, making a detailed order for production of financial disclosure by both parties and adjourning the trial, briefly, to permit disclosure to be made and filed with the court. The actual evidence at trial was relatively brief, with each party testifying and no other witnesses being called.
[45] In all the circumstances, I find that a costs award of $12,000 is reasonable and I order this amount be paid by March 15, 2014. The order below also reflects that the costs amount shall be enforceable in its entirety by the Director of the Family Responsibility Office as the costs were incurred in relation to child and spousal support issues.
ORDER
[46] For reasons set out above, a final order shall issue as follows:
The applicant, David Lee Jamieson, shall pay to the respondent, Tracy Elaine Jamieson, her costs of this proceeding fixed in the amount of $12,000 inclusive of assessable disbursements and HST, to be paid by March 15, 2014.
This costs order constitutes a “support order” as defined in s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996 and is thereby enforceable by the Director of the Family Responsibility Office.
Original Signed “Victor Mitrow”
Justice Victor Mitrow
Date: January 7, 2014