ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Facchini v. Bourre, 2015 ONSC 1589
COURT FILE NO.: F387/12
DATE: 2015-03-12
B E T W E E N:
Gina Roberta Facchini
Applicant
-and-
D’Arcy Denis Andrew Bourre
Respondent
C. Mackenzie, for the Applicant
L. Reich, for the Respondent
THE HONOURABLE MR. P.B. HAMBLY
Ruling on Costs
[1] I rely on the facts set out in my judgment released on February 2, 2015. The trial took place over 4 days on January 15, 16, 19 and 20 in 2015. I released a judgment on February 2, 2015. I will refer to the facts only as may be necessary to support this ruling on costs.
[2] Gina and D'Arcy lived together from 2007 until December 2010. Ozzy was born of this relationship on June 20, 2008. He is 6 years of age. Gina commenced an application against D'Arcy on July 11, 2012. She sought custody of Ozzy and retroactive and current child support. D'Arcy filed an Answer in which he sought joint custody, shared equal residence of Ozzy and that he pay no child support. Both parties were self represented until close to the trial. Gina retained Ms. Mackenzie in mid November, 2014. D'Arcy retained Mr. Reich in early January, 2015.
[3] On January 22, 2014 Justice Korpan made an interim order that Ozzy reside with D'Arcy on alternate weekends from Thursday at 4:00 p.m. to Sunday at 8:00 p.m. and on alternate Wednesdays when D'Arcy was on the day shift from 4:00 p.m. to 8:00 p.m. At all other times she ordered that he reside with Gina. She ordered that D'Arcy pay support to Gina for Ozzy in the amount of $639 per month on an income of $70,000 commencing on January 1, 2014, based on his oral representations.
[4] I ordered that Gina have custody of Ozzy, that D'Arcy have access to Ozzy in accordance with the interim order of Justice Korpan, that D'Arcy pay arrears of child support in the amount of $12,500, that he pay child support in accordance with the child support guidelines based on his income reported in his 2013 income tax return in the amount of $688 per month and that there be a review of child support in 2016 based on an exchange of 2015 income tax returns.
[5] The central dispute in this case was whether Gina would have sole custody of Ozzy, that D'Arcy pay retroactive and current child support to Gina or that Gina and D'Arcy have joint custody of Ozzy, with Ozzy spending equal amounts of time with each and that D'Arcy pay no child support either current or retroactive. I directed early in the trial that the lawyers file draft orders of what their respective clients wanted the court to order. I made an order that adopted the draft order which Ms. Mackenzie filed on behalf of Gina. She was completely successful on all issues.
[6] Ms. Mackenzie filed, on behalf of Gina, an offer dated October 21, 2014 which mirrored the draft order that she filed which became the order of the court on the issues of custody, access and child support. The offer provided that she released her claim to arrears of child support prior to October 30, 2014. The full amount of arrears of child support at trial exceeded $16,000. Gina sought only $12,500 which is what I ordered. After a 4 day trial, Gina obtained an order for which she had agreed to settle on custody, access and support and in addition substantial child support arrears. The order of child support arrears was less than the full amount of the arrears only because Gina did not seek the full amount.
[7] Relevant Family Court Rules are as follows:
1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
18 (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
24.(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(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.
[8] Rules 18 and 24 do not use the terms partial indemnity or substantial indemnity costs. The implication is that a successful party may be entitled to something between full indemnity and no costs. (see the decision of Henderson J. in Zeleny v. Zeleny [2004 5094 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2004/2004canlii5094/2004canlii5094.html>, [2004] O.J. No. 138 at para. 22)
[9] The Costs subcommittee published a guideline for hourly rates that is set out in the Ontario Annual Practice as follows:
Law Clerks Maximum of $80.00 per hour
Student-at-law Maximum of $60.00 per hour
Lawyer (less than 10 years) Maximum of $225.00 per hour
Lawyer (10 or more but less than 20 years) Maximum of $300.00 per hour
Lawyer (20 years and over) Maximum of $350.00 per hour
[10] The Rule of Civil Procedure that sets out the factors that a court should take into account in fixing costs is as follows:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
a) the amount claimed and the amount recovered in the proceeding;
a) the apportionment of liability;
b) the complexity of the proceeding;
c) the importance of the issues;
d) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
e) whether any step in the proceeding was,
i. improper, vexatious or unnecessary, or
ii. taken through negligence, mistake or excessive caution;
f) a party's denial of or refusal to admit anything that should have been admitted;
Unreasonableness of D'Arcy's Conduct
[11] 1. D'Arcy did not provide full financial disclosure until early in January 2015 after he retained Mr. Reich on the eve of trial.
[12] Gina offered to D'Arcy, in her evidence at trial, after school access to Ozzy when D'Arcy was on the day shift at his residence. I held that this proposal was suggestive of Gina trying to appease D'Arcy and so much exchange of the child was not in his best interests. It is significant that Tiffany recognized that so much exchange of the child was inappropriate. Her answer to it in support of D'Arcy was, of course, that there be shared equal residence of Ozzy. D'Arcy would not consider the proposal. It would have given D'Arcy substantial increased access with Ozzy but would still have required him to pay child support to Gina. His rejection of it supports my finding that although I found that D'Arcy loved the child I also found that "a significant part of his determination to have custody and shared residence for Ozzy is to avoid paying guideline child support" (para. 53(3)).
- Given the case law on joint custody as opposed to sole custody which I attempted to set out in my judgment the inability of the parties to communicate, D'Arcy's denigration of Gina which I found to be "vile" and "unacceptable" and the fact that the primary residence of the child had always been with Gina made D'Arcy's position of joint custody and equal shared time with Ozzy untenable. Family cases should usually be settled. They usually can be settled, sometimes with guidance from a judge, and parties willing to explore settlement. Given D'Arcy's position, this was a case that had to be tried. Ms. Mackenzie states in the written submissions that she filed on behalf of Gina at para. 29, "The Applicant had no option but to seek judicial intervention." I agree.
Reasonableness of Gina's Conduct
[13] Gina is much to be commended for having the courage to take this case to trial and standing up to D'Arcy's abuse. The bullying and denigration of women so much in the news of late is intolerable. The courts must not and will not tolerate it. D'Arcy stated in writing in e-mails to Gina that she was a "ho", a "baby moma" and that he would make sure that Ozzy starts "to understand the type of person you are". I found that "Gina's concerns are well founded that if D'Arcy is permitted with impunity to continue to voice these opinions about her in front of Ozzy that this will affect Ozzy's view of women and even of her." (para. 53(5)). Ms. Mackenzie, who provided Gina with the representation that she needed to present her case, deserves to be compensated beyond the modest rates provided in the Unifor agreement. She is entitled to standard hourly compensation for lawyers as recommended by the report of the subcommittee on the Rules of Civil Procedure.
Hourly Rates
[14] Both parties are insured for legal fees by the UNIFOR LEGAL SERVICES PLAN. It will pay for legal services for up to 12 hours at the rate of $110 per hour to a "co-operating lawyer". Ms. Mackenzie and Gina signed an agreement that Ms. Mackenzie would provide legal services to Gina at this rate. D'Arcy, in the written submissions filed on his behalf by Mr. Reich, submits that the costs which the court should award to Gina should not exceed the number of hours that Ms. Mackenzie worked on the case multiplied by 110. He submits that costs are meant to be an indemnity for the cost of legal services to the successful party. He also agreed with D'Arcy to provide legal services to him at the rate of $110 per hour. Mr. Reich further submits that D'Arcy had a reasonable expectation that in the event that he lost the case, that costs would not be awarded against him that exceed this rate applied to the hours that Gina's lawyer worked on the case. The Unifor Co-operating Lawyer Agreement provides that if the costs recovered by the co-operating lawyer exceed the obligation of the plan to the co-operating lawyer, that the costs shall be first applied to the amount owed by the plan to the co-operating lawyer and the remainder may be retained by the lawyer. The plan does not pay H.S.T. or disbursements.
[15] Mr. Reich's submission does not take into account what the Court of Appeal in the judgment of Justice Sharpe held in Fong v. Chan [1990] O.J. No. 4600. Justice Sharpe stated that there were multiple purposes of an award of costs against an unsuccessful party including:
[22] ...a means of controlling behaviour by discouraging frivolous suits or (un)meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements....
Respectfully I would add an additional factor. That is to reward the lawyer for the successful party for her advocacy. The advocacy of Ms. Mackenzie was superb - all the evidence that she introduced was relevant, her questioning of witnesses was focused and efficient, her tactical advice to Gina appropriate and her written submissions that she supplied at my request were very useful. This is not meant at all to be a criticism of Mr. Reich, whose advocacy was also excellent. He did the most that he could in representing a difficult client with a weak case.
[16] In Boucher v. Public Accountants 2004 14579 (ON CA), [2004] O.J. No. 2634 the Court of Appeal in the judgment of Justice Armstrong stated the following:
[24] The appellants submit that the motions judge accepted the bills of costs that were presented to her without any deductions. The bills were prepared in accordance with the calculation of hours times dollar rates provided by the costs grid. While it is appropriate to do the costs grid calculation, it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable. This approach was sanctioned by this court in Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.) at para. 4 where it said:
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 parties rather than any exact measure of the actual costs to the successful litigant.
[See also Stellarbridge Management Inc. v. Magna International (Canada) Inc. (2004), 2004 9852 (ON CA), 71 O.R. (3d) 263, [2004] O.J. No. 2102 (C.A.) at para. 97.]
[25] Zesta Engineering and Stellarbridge simply confirmed a well settled approach to the fixing of costs prior to the establishment of [page299] the costs grid as articulated by Morden A.C.J.O. in Murano v. Bank of Montreal at p. 249 O.R.:
The short point is that the total amount to be awarded in a protracted proceeding of some complexity cannot be reasonably determined without some critical examination of the parts which comprise the proceeding. This does not mean, of course, that the award must necessarily equal the sum of the parts. An overall sense of what is formed one before the parts are critically examined. reasonable may be factored in to determine the ultimate award. This overall sense, however, cannot be a properly in
[17] In Osmar v. Osmar 1999 2052 (ON CA), [1999] O.J No. 4600, Justice Aston held that the husband was required to pay the wife's costs at rates of 25%, 50%, 60% to stated dates and finally at 85% from a stated date to the end of the trial. He stated the following:
[25] .... I would not have hesitated to order higher indemnification if Mr. Osmar's behaviour as a litigant made censure appropriate. It does not. The award of costs will, therefore, distinguish Mr. Osmar from a litigant in like circumstances who did act unreasonably or in bad faith.
[18] Justice Price in Friday v. Friday [2013] O.J. No. 4439 cites Osmar for the following:
[42] Under the Family Law Rules, however, the traditional assumption that there are only two levels of costs ("party-and-party"/"solicitor-and-client"; or "partial indemnity"/"substantial indemnity") no longer applies. The court is simply required to consider the range between a nominal amount of costs and full recovery. It is not appropriate to award more than 85% of a successful litigant's bill, unless the unsuccessful litigant has acted unreasonably or in bad faith to the extent that censure is appropriate.
[19] Ms. Mackenzie has presented a bill of costs in which she states that she spent 78.7 hours working on the case including 4 days at trial and her law clerk spent 16.1 hours. She claims only from the time that she commenced working for Gina. She claims an hourly rate of $350. She has been practicing for over 25 years. This rate is consistent with the maximum rate for partial indemnity costs for a lawyer with over 20 years of experience recommended by the Costs Subcommittee of the Civil Rules Committee. Ms. Mackenzie claims costs of her clerk at the rate of $125 per hour. She claims disbursements of $407.26. The total amount of her bill of costs with HST is $33,807.24. She describes this amount as full recovery costs. She claims 85% of this which is $28,123.88.
[20] I have performed the exercise that Justice Armstrong in Boucher stated that a judge should do in fixing costs "to step back", look at the overall result of applying a time to hourly rate approach. I have also considered what Justice Morden stated in Murano that an award of costs need not "necessarily equal the sum of the parts" of the proceedings. I note that D'Arcy has not presented a bill of costs that he would have claimed if he had been successful. This is cited as a factor to be taken into account in Civil Procedure Rule 57.01(1)(.0b). In Risorto v. State Farm [2003] O.J. No. 9900 at para. 10, Justice Winkler (as he then was, later Chief Justice of the Court of Appeal) stated that an attack on a bill of costs by an unsuccessful party who did not produce a bill of costs that he would have presented if he had been successful was no more than "an attack in the air".
[21] In my view the award of costs sought by Gina is entirely fair and reasonable. She would likely be entitled to more. I order that D'Arcy pay costs to Gina in the amount of $28,797.24. The dispute over custody as opposed to joint custody and child support were intertwined. It would be impossible to assess how much time was taken up by each. It is fair to divide the time equally between the two for purposes of enforcement by FRO. As requested by Gina I also make an order as follows:
THIS COURT ORDERS THAT $12,561.94 (50% of the legal fees awarded of $25,123.88) plus H.S.T. of $1,633.05 plus 50% of the disbursements $203.63 , for a total of $14,398.62 were incurred to obtain an order for child support, and are legal fees or other expenses arising in relation to support, and as such, should be enforceable by the Director in accordance with section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (as amended) and Wildman v. Wildman (2006) 82 O.R. (3d) 41.
P.B. Hambly, J.
Released: March 12, 2015
CITATION: Facchini v. Bourre, 2015 ONSC 1589
COURT FILE NO.: F387/12
DATE: 2015-03-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gina Roberta Facchini
Applicant
-and-
D’Arcy Denis Andrew Bourre
Respondent
REASONS FOR JUDGMENT
P.B. Hambly, J.
Released: March 12, 2015