SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-08-1664-1
DATE: 2014/01/07
RE: Ron Walts v. Donna Walts
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
Deanne E. Fowler, for the Applicant, Ron Walts
Suzanne Y. Côté, for the Respondent, Donna Walts
DATE HEARD: In Chambers (Written Submissions)
ENDORSEMENT ON COSTS
[1] Pursuant to my decision dated November 4, 2013, the parties have now provided me with their written submissions on costs. Ms. Walts is seeking $12,404.67 inclusive of disbursements and HST, on a full recovery basis. Mr. Walts submits that the proper amount of costs payable by him is $3,500.00 inclusive of disbursements and HST, on a partial indemnity basis.
Background of the Proceeding
[2] This was a motion to change by Mr. Walts commenced on November 6, 2013 and heard on affidavit evidence. Initially Ms. Walts had different counsel acting for her who responded to the motion and attended on the case conference. Her current counsel was retained in mid-2013 and conducted the hearing which took half a day. Both parties prepared and filed factums. The main issues to be decided at the hearing were whether Mr. Walts was entitled to a division of Ms. Walts’ pension as a result of lack of disclosure, and whether there had been a material change in circumstances such that Mr. Walts could seek a termination of his spousal support obligation. Both of these issues were decided in favour of Ms. Walts.
Law
[3] Pursuant to subsection 131(1) of the Courts of Justice Act, R.S.O., c. C.43 as amended, costs are discretionary. I have assessed the costs below guided by Rule 24 of the Family Court Rules, O. Reg. 114/99 as amended, and in particular sub-rules (1), (4) through (9), and (11).
[4] The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances (Murray v. Murray (2005), 2005 46626 (ON CA), 79 O.R. (3d) 147 (C.A.)). This includes considering the reasonable expectations of the losing litigant regarding costs (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.)). It also includes a consideration of the impact that the cost award will have on the party ordered to pay (Murray, supra).
[5] As it has been raised, I also note per sub-rule 24(10) that I am not awarding costs for preliminary steps (conferences and motions) that have been addressed by another judicial officer where the costs have not been reserved to trial: see Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10. This does not mean, however, that the costs order should only relate to matters concerning the hearing. As clarified in Houston v. Houston, 2012 ONSC 233, 12 R.F.L. (7th) 115 (Div. Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule.
Analysis
[6] Regarding sub-rules 24(1) and (6) of the Family Court Rules, Ms. Walts was successful at the hearing and is presumed to be entitled to costs. Per sub-rules (4) and (5), she did not behave unreasonably during the case such that this presumption is rebutted.
[7] None of sub-rules 24(7), (8), or (9) impact on my decision. Both sides were well prepared for the hearing and it was run efficiently by counsel. No side alleged bad faith.
[8] This leaves me to consider the factors in sub-rule 24(11). In my view the first factor (a) is not significant, as the issues were not particularly complex even though they were important to the parties.
[9] Regarding sub-rules 24(11) (c), (d), and (e), the issues taken with the Bill of Costs by Mr. Walts were threefold. First, he indicates that the Bill of Costs should not include fees for the case conference and, referring to the summary of the law as set out above, I agree. The order from the case conference did not reserve costs to me. I have adjusted Ms. Walts’ previous solicitor’s account accordingly, but not to the extent requested as by Mr. Walts in that he wanted me to ignore all the work predating the case conference, even if it was not related to it. Second, Mr. Walts disputes the disbursement relating to the valuation for the BC pension, asserting that Ms. Walts agreed to provide the report. This report was necessary with respect to Mr. Walts’ own claim, and I am not satisfied that Ms. Walts waived any claim for repayment of this expense. As such I find that it is an appropriate disbursement. Lastly, Mr. Walts asserts that he should not be responsible for any added lawyer time associated with Ms. Walts’ decision to change counsel. I agree, although I note that Ms. Walts’ new counsel was very efficient in reviewing the file and in her first meeting with her client, as it appears that the additional time spent was only about two and a half hours.
[10] I do not find that either party’s behavior (as opposed to position) in the case was unduly unreasonable. Reasonableness in sub-rule 24(11)(b) also requires me to consider offers to settle per 24(5), which are also specifically dealt with in rule 18(14). Ms. Walts’ offer contemplated the existing support continuing, and this was the effect of my order in dismissing Mr. Walts’ motion. However, her offer also indicted that the support would continue until March of 2022, which I did not order. Mr. Walts’ offer, as I understand it from his submissions, was to terminate the support effective November 30, 2013, the main issue in the hearing, which was not granted. He also offered to waive any claim to the BC pension which I did order, although his seeking that relief then offering to forgo is not a significant concession in the context of this case. Neither of these offers indicated that their terms were severable, and therefore in my view neither offer was as favourable or more favourable in totality than what I ordered. I cannot see a reason to grant costs on a full recovery basis to either party based on my review of the offers, or for that matter as noted above for any other reason.
[11] Regarding sub-rule 24(11)(f) (“any other relevant matter”), nothing was specifically argued. This last catch-all category is often the basis for a consideration, as touched on in the summary of law above, of the impact that the costs award will have on the parties. I am aware of the overall means and needs of both parties from the hearing itself and, having considered that, I find that this has little impact in this case as a factor in setting the costs award.
[12] Ms. Walts relied on Biddle v. Biddle, 2005 7660 (Ont. S.C.) indicating that the court in that case “ordered costs of $12,000 to the party who was successful on an interim motion.” While I agree with the principles and analysis in that case – indeed they are very similar to the above – the facts are very different. Without referencing all of them, I note that in Biddle the solicitor of the party seeking costs claimed 60 hours worked at an hourly rate of $325. Full indemnity costs were sought of $19,543.66, and costs of $12,000 were awarded. In our case both of Ms. Walts’ counsel’s total hours were roughly 44 by my count, and all of them were at much lower hourly rates. I have discounted from those hours the work associated with the attendance on the case conference and the minor duplication resulting from a change of counsel. Overall, I do not consider the costs award that I have arrived at in the exercise of my discretion in this case as being inconsistent with Biddle, even though it is much lower.
Decision
[13] Having regard to all the relevant factors and considerations as outlined above, I order costs payable by Mr. Walts to Ms. Walts in the amount of $7,500.00, inclusive of disbursements and HST, as a fair and reasonable amount in all the circumstances.
Mr. Justice Timothy Minnema
RELEASED: January 7, 2014
COURT FILE NO.: FC-08-1664-1
DATE: 2014/01/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ron Walts v. Donna Walts
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Deanne E. Fowler, for the Applicant, Ron Walts
Suzanne Y. Côté, for the Respondent, Donna Walts
ENDORSEMENT
Mr. Justice Timothy Minnema
RELEASED: January 7, 2014