Court File and Parties
Court File No.: FS-09-00345373-0000
Date: 20140604
Superior Court of Justice – Ontario
Re: BRIAN REYNOLDS, Applicant
And:
RIE HIGUCHI, Respondent
Before: C. Horkins J.
Counsel:
Brian Reynolds, acting in person
Rie Higuchi, acting in person
Costs Endorsement
[1] The trial proceeded over four days in April 2014 and I released my reasons for judgment on May 6, 2014. The parties have not been able to agree on costs and have now exchanged written costs submissions. Both parties are seeking costs.
[2] Neither party was wholly successful at trial. On the day that the trial was set to start the parties settled many of the issues. As well, they agreed on various matters that narrowed the focus of the trial.
[3] As set out in my reasons for judgment, the trial dealt with child support and this required four issues to be determined. All issues were connected to what income would be used to calculate the applicant’s child support obligation. As explained in my reasons, three of the four issues were decided in the applicant’s favour.
[4] However, I do not look solely at the fact that three of the four issues were decided in favour of the applicant and decide on this basis alone that he is entitled to costs. Some of the issues that were settled on the first day of trial were settled in favour of the respondent as set out in my judgment. Furthermore, I ordered the applicant pay the respondent past child support and child support going forward.
[5] The applicant seeks costs of $12,564.53. This represents $3,348.92 for lost wages, $438.86 for value of the lost pension contribution, $120 for parking, $60 for a babysitter and $8,596.53 for legal fees.
[6] The respondent seeks costs of $6,153.76. This consists of three amounts. First, $3,202.25 in costs to attend a settlement conference before Paisley J. on November 27, 2009. The court’s endorsement states that the conference did not go ahead because disclosure issues were “not satisfactorily resolved”. Costs of that attendance were reserved to the trial judge. The respondent blames this on the applicant, but the actual court endorsement does not assign blame. I order no costs for this attendance. Second, $1,000 for preparation and attendance at trial. She explains that she incurred $5,329.66 to prepare and attend trial. Since many issues were settled in the days leading up to the trial she has reduced the amount to $1,000. This amount includes daycare costs for her child while she attended trial. Lastly, she seeks $1,951.51 to prepare her costs submissions.
[7] Rule 24 of Family Law Rules, O. Reg. 114/99 deals with costs. Rule 24(1) states that the successful party is presumed entitled to costs.
[8] Rule 24(11) of Family Law Rules states that in setting the amount of costs the court shall consider the following factors:
(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.
[9] In Jordan v Stewart, 2013 ONSC 5037 at paras. 74-75, Czutrin J. summarized the law that applies when a self-represented litigant is seeking costs:
74 It is apparent from the review of the case law below that the preponderance of modern authority supports the position that self-represented lay litigants may be awarded costs and that such costs may include allowance for counsel fees.
75 I would also add the following from Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 26:
Self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel.
As the Chorley case [London Scottish Benefit Society v. Chorley, Crawford, and Chester (1884), 13 Q.B.D. 872] recognized, all litigants suffer a loss of time through their involvement in the legal process.
The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.
Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity.
As the early Chancery rule recognized, a self-represented lay litigant should receive only a "moderate" or "reasonable" allowance for the loss of time devoted to preparing and presenting the case.
This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. [Emphasis in original.]
[10] The issues that were dealt with at trial were important to the parties, but they were not complex or difficult.
[11] A review of this dispute reveals that these parties were embroiled in long standing litigation that started in 2007. It was not until the day the trial started that they focused on a reasonable solution to their dispute. It is not possible to characterize either party as acting reasonably.
[12] Each party has incurred costs that they would have incurred with or without a lawyer (i.e. lost wages, pension contributions, babysitting and parking fees). Such expenses are not recoverable from each other.
[13] The fair solution must take into account that neither party was sufficiently successful to merit a costs award. They are both to blame for this protracted litigation. As a result, I conclude that neither party is entitled to costs from the other.
C. Horkins J.
Date: June 4, 2014