ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-1406

DATE: 2014/12/18

BETWEEN:

ERIC BERNIER

Applicant

– and –

STEPHANIE SHEPHERD

Respondent

Michèle D. Blais, for the Applicant

Mark P. Shelston, for the Respondent

HEARD: By Written Submissions

DECISION ON COSTS

LALONDE J.

[1] I released written reasons on this long motion on November 14, 2014. At that time, I ordered the parties to have temporary joint custody on all major decisions regarding the children of the marriage, namely Elliott, born November 8, 2010 and Savannah, born January 31, 2013.

[2] Further, I ordered that the children on a temporary basis reside with each party, alternating residences Friday after school or daycare, as applicable.

[3] The order of Sheffield J. of June 17, 2014, granted on an ex parte basis, was rescinded and I ordered that neither party consume alcohol at any time, that neither denigrate the other in the presence of the children and that the Respondent continue to take her medication and continue to see Dr. Paterniti.

[4] Without argument before me the parties agreed to undergo a family assessment by a jointly agreed upon assessor with the costs to be shared equally.

[5] The parties both sought relief by appearing before me concerning custody and access of their two children. The Applicant, who undoubtedly had suffered quite a bit at times due to the fact that the Respondent had an uncontrolled bi-polar condition, decided that the moment had come for a separation. Without going into details that I have set out in my written decision, the mother upon receiving the separation papers went into a crisis caused by her bi-polar condition that took one month to stabilize. The Applicant jumped on the occasion to restrict access to the mother who was residing with her parents in the immediate neighbourhood where the matrimonial home was located and where the children continued to reside with the Applicant. When access resumed the Respondent was given very little time with her children. Her bi-polar condition had stabilized and a medical doctor instructed her on how to react to situations that trigger a crisis due to her medical condition.

[6] Both parties have made submissions as to costs. The Respondent who claims to be the successful party and whom I find to be the successful party claims a total of $19,678.65 inclusive of H.S.T. and disbursements. From this amount two accounts belong to the Respondent’s former solicitor totalling $7,156.04 for work done commencing after the ex parte order on June 19, 2014 and continuing until September 22, 2014.

[7] First, I will deal with the argument that because this case is a custody and access case, costs should not be granted. Talsky v. Talsky, 1973 53 (ON CA), [1973] 3 O.R. 827 (Ont. C.A.) is no longer the applicable law; see C.A.M. v. D.M., 2003 18880 (ON CA), [2003] 67 O.R. (3d) 181, where at para. 33 Rosenberg J.A. refers to the Family Law Rules having reversed that court’s decision in Talsky. Costs are awarded in custody and access cases.

OFFERS TO SETTLE

[8] While the Applicant made two offers to settle, the offers did not advance the case for either party. The Applicant did all in his power to minimize the role of the Respondent mother and that of her parents who babysat the children on so many occasions prior to their daughter’s separation and claimed that they could not be relied upon to supervise the mother (they lived close by the parents in the same neighbourhood). As a result I find that the offers were not realistic at all. The offers had the effect of placing the mother as a bystander watching the children being raised by someone else. Overnight the children’s mother would see her children for fewer hours than a regular babysitter would.

[9] I find that there is nothing wrong with the mother’s conduct. At the risk of repeating my written decision, I find that the father’s conduct was reprehensible. The Applicant had known for sometime of the Respondent’s medical condition.

[10] If he had bothered to find out how a crisis is triggered for the Respondent’s condition perhaps he would not have had the papers served upon her by surprise, when she was alone in the house and at a time when a tire was flat on her car. Both the Respondent and her parents tried to extricate themselves from bad circumstances as best they could. The Respondent’s conduct was no more unreasonable than the Applicant’s.

[11] As Madam Justice V.J. Mackinnon pointed out in her decision of Van Westerop v. Van Westerop, 2000 22456 (ON SC), [2000] 12 R.F.L. (5th) 228, the court has a responsibility to review the fees and to fix costs at a fair and reasonable level in the context of the case, the bill of costs in question and the factors set out in R. 24(11) which read as follows:

Factors in Costs. – 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.

[12] While this case is not complex, it is important as it affects the best interests of two children. Costs are high as while the Applicant had the time to prepare himself to launch his ex parte application the Respondent did not. Going into a crisis made it difficult for the Respondent to give instructions to her counsel from a hospital bed. Then the doctors who had knowledge of the Respondent’s condition were not available. No doubt that those circumstances increased the number of hours spent by a lawyer at a time when school was out and professionals were leaving for annual holidays.

[13] In considering rule 24(11), I intend to follow the reasoning of M. Linhares de Sousa J. in Piscar v. Piscar, (30 January, 2001) Ottawa 93-FL-20578 (S.C.J.), where she states at para. 14:

The procedure of fixing costs in a summary manner is clearly not the same as assessing costs. Mr. Justice Henry clearly established this principle when he was considering the parameter of his discretion in awarding costs under s. 141(1) of the Courts of Justice Act, 1984, S.O. 1984, c. 11, and R. 57.01 [am. O. Reg. 786/84, s. 10] of the Rules of Civil Procedure that called for the fixing of costs. He stated at page 326 of that decision:

This brings me to a second guiding principle – the judge in fixing costs of a proceeding is not assessing costs as if he were performing the functions of a master of [sic, or] officer to whom the court has referred costs to be assessed. Rule 57.01(3) expressly provides that:

In awarding costs, the court may fix all or part of the costs with or without reference to the Tariffs, instead of referring them for assessment…

This I understand is what the judges are doing frequently in interlocutory proceedings currently, including myself; it is not an assessment item by item according to the Tariffs as would be done by an assessment officer; it is rather the judge’s determination of what the services devoted to the motion or other proceeding are worth according to the submissions of counsel, his own experience and with some regard to what could be taxed on the party and party scale. This is done in Weekly Court, Motions Court and Divisional Court and normally involves the party and party scale. It is essentially pragmatic, made on an overall appreciation of the factors in rule 57.01 without reviewing a catalogue of itemized charges.

[14] These principles still guide us today as well as the principles concerning lawyers’ rates. I quote further paras. 22-23 of her decision:

With respect to the lawyers’ rates, they are in the high range for the number of years that Mr. Rankin and his other senior counsel, Ms. A. Camacho, have been practicing. However, they are still within the range of reasonable rates. On this issue, I am persuaded by the words of Madam Justice Aitken in O’Connor v. Kenney, (18 October 2000) Ottawa at page 5:

Fixing costs does not involve a painstaking analysis of each step taken in the course of litigation. The approach is to more generally consider what amount of costs is fair to all parties (Mallory v. Mallory (1998), 1998 29653 (ON SC), 35 R.F.L. (4th) 222 (Ont. Gen. Div.))

When fixing costs on a solicitor and client scale, as long as the hourly rate being proposed by counsel falls within a range of reasonableness, it is not for the judge to second-guess the appropriateness of the rate (Mallory, supra, para 22)

In Mallory v. Mallory, 1998 29653 (ON SC), [1998] O.J. No. 41 (Ont. Gen. Div.), Mr. Justice Quinn had the following to say about fixing costs and the consideration of a lawyer’s hourly rate:

As for the hourly rate at which solicitor-and-client costs should be allowed in a particular case, I expect that the more recently the judge, who is fixing costs, has practiced law the more he or she is likely to be attuned to the prevailing rates. As long as the hourly rate being proposed by counsel falls within a range of reasonableness (the ambit of which, in my view, should be expansively drawn), it is not for the judge to second-guess the propriety of the rate. Here, the wife is represented by a senior, experienced and competent counsel. I find his solicitor-and-client hourly rate of $350.00 to be within the range of reasonableness. It certainly is not for me to say that a less experienced (and expensive) solicitor would have obtained the same result for the wife.

[15] While I find that both counsel’s hourly rates to be reasonable given their years of experience at the bar; over 30 years for Mr. Shelston who billed at the rate of $425 per hour; and over 15 years at the bar for Ms. Scholey who billed at $200 per hour, I have reduced their claim for costs to a level that I find reasonable considering that this case is at its early stage.

[16] Even though the Applicant earns $155,000 per year, I have to be mindful that he is maintaining the children in the former matrimonial home and this represents an advantage to the children as they adjust to the fact that their mother resides permanently with the maternal grandparents.

[17] Everything considered, as outlined above, I fix costs as follows:

(a) For Barbara Scholey – her accounts are reduced to $5,000 all-inclusive and for Mr. Shelston his account is reduced to $10,000 all-inclusive for total costs of $15,000 that I order the Applicant to pay within 30 days of the receipt of this decision.

[18] In my award, I bear in mind the Ontario Court of Appeal’s decision in Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) which instructed the judges to keep litigation costs reasonable and try their best to award costs at a level that the unsuccessful party should have reasonably expected to pay.

Lalonde J.

Released: December 18, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ERIC BERNIER

Applicant

– and –

STEPHANIE SHEPHERD

Respondent

DECISION ON COSTS

Lalonde J.

Released: December 18, 2014