ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0280
DATE: 2014-09-15
B E T W E E N:
RACHEL DORCAS FIDDLER
Timothy Matthews, for the Applicant
Applicant
- and -
JOSIAS JOHNATHON FIDDLER JR.
Lauren Conti, for the Respondent
Respondent
HEARD: August 29, 2014,
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision on Costs
[1] This is a decision on the costs of a motion. Ms. Fiddler brought a motion for interim child support and interim spousal support. Mr. Fiddler brought a motion for interim access.
[2] Prior to hearing the motions, the parties resolved the issues of interim child support and interim access, leaving only the issue of interim spousal support to be determined. I awarded Ms. Fiddler interim spousal support at the low end of the Spousal Support Advisory Guidelines’ range, in the amount of $670.00. Orders were also made to incorporate the parties’ settlement of interim child support and interim access.
[3] Ms. Fiddler seeks costs of $4,000.00 on the motion for interim spousal support. Mr. Fiddler submits that $4,000.00 is excessive and out of proportion for a motion for interim support that was not complex.
[4] 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.”
[5] Rule 24(10) provides that promptly after each step in the case the court should decide who, if anyone, is entitled to costs and set the amount of costs.
[6] 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 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 signatures of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[7] 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.
[8] In C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at para. 40, Rosenberg J. 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.
[9] 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.
[10] 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.
[11] Ms. Fiddler was successful on the motion for interim spousal support. There is no reason to depart from the presumption in rule 24(1) that as the successful party she is entitled to costs.
[12] I agree with Mr. Fiddler that the issue of interim spousal support was not particularly complex. It was made somewhat unusual because of the position of Mr. Fiddler that the six children in his new family should lead to a significantly reduced spousal support obligation.
[13] The issue of spousal support was important to the parties, but the award of $670.00 per month was relatively modest.
[14] The motion was capably argued by both counsel. Mr. Mathews, the solicitor for Ms. Fiddler, has one year at the bar. He docketed 27.5 hours. He was assisted by Ms. Stam of his office, a solicitor of 19 years’ experience, who docketed two hours. The hourly rates of Mr. Matthews and Ms. Stam, of $175.00 and $290.00 per hour, are reasonable rates to bill to their client. However, on a motion of this nature, 29.5 hours of time is high. Although Ms. Fiddler does not seek costs which would amount to full indemnity for the 29.5 hours of her lawyers’ time, and two hours of clerk time, namely $6,300.00, in my view even the reduced amount of $4,000.00 for this type of motion remains high, and more than Mr. Fiddler, as the unsuccessful party, could likely reasonably expect to pay. I note, however, that if an unsuccessful party is contesting the reasonableness of the successful party’s bill of costs, it is helpful for the court, in assessing whether the amount claimed is something that the unsuccessful party could have reasonably expected to pay, to have the unsuccessful party’s own bill of costs, although it cannot be compelled.
[15] Ms. Fiddler made an offer to settle interim spousal support at $700.00 per month. The award was $670.00 per month. The offer does not attract the costs consequences of rule 18(14) because the order was not as favourable or more favourable than the offer. Mr. Fiddler made an offer of $150.00 per month which was well below the amount of the order. Rule 18(14) dealing with the costs consequences of a failure to accept an offer to settle differentiates between “costs” and “full recovery of costs”.
[16] I take into account that Mr. Matthews had to prepare for and attend twice in court with a view to arguing the motion. The motion was not heard on the first of those two attendances because of Mr. Fiddler’s request for an adjournment. Mr. Fiddler’s partner was in Winnipeg given birth to their child at the time. I also take into consideration that the issue of child support was settled on the basis of Guidelines support and that Mr. Fiddler’s motion for access was settled. This spoke to the reasonableness of the conduct of both parties that tended to shorten proceedings.
[17] In my opinion, having regard to the factors discussed above, in the context of the facts of this particular case, it would be fair and reasonable to award Ms. Fiddler costs of her motion in the sum of $2,500.00, plus HST, plus disbursements of $51.42, inclusive of HST, payable within 30 days.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: September 15, 2014
COURT FILE NO.: FS-13-0280
DATE: 2014-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RACHEL DORCAS FIDDLER
Applicant
- and –
JOSIAS JOHNATHON FIDDLER
Respondent
DECISION ON COSTS
Shaw, J
Released: September 15, 2014
/mls