Court File and Parties
CITATION: Godo v. Desjardins, 2015 ONSC 2657
COURT FILE NO.: FC-15-229
DATE: 2015/04/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Else-Britt Godo, Applicant
AND
Jacques Yves W. J. Desjardins and Tasha Lynn Dean, Respondents
BEFORE: Mr. Justice Patrick Smith
COUNSEL: David J. Hughes, for the Applicant
Melody Loubert, for the Respondents
HEARD: (By written submissions)
ENDORSEMENT ON COSTS
Brief History of the Proceeding
[1] This endorsement on costs relates to the emergency motion brought by the Applicant pursuant to Rule 14(2) of the Family Law Rules.
[2] In order to bring a motion on an urgent basis an applicant must prepare an Application, a Financial Statement with required financial records, a Net Family Property Statement and an affidavit in support of the claims made.
[3] At a Case Conference held on February 5, 2015 Master McLeod made the following endorsement:
- setting the date for a Case Conference on February 26, 2015 to allow the Respondent to file responding material;
- adjourning the motion to March 20, 2015 for hearing;
- granting leave to the Respondent to file his Financial Statement without having to attach the Notices of Assessment he could not locate but ordering him to “immediately request copies of notices that are missing and provide them as soon as possible. He is also to file his outstanding 2013 income tax returns as soon as possible and to provide a copy to the Applicant.”; and
- in paragraph 5(c) of the endorsement, reserving costs of the day to the motions judge.
[4] Attached to Master McLeod’s endorsement was a six-paragraph agreement signed by the parties.
[5] Paragraph 3 of the agreement required the Respondent, on a without prejudice basis, to pay interim child support for the two children of the marriage in the amount of $1,416.00 per month commencing February 1, 2015 and also payable on March 1, 2015 and thereafter to be determined by the judge hearing the motion scheduled for March 20, 2015.
[6] In para. 4 of the agreement, the Respondent agreed to assume sole responsibility all of the activities of the children and to provide proof of payment to the Applicant prior to the Case Conference scheduled for February 26.
[7] The Applicant asserts that the Respondent has failed to comply with paras. 3 and 4 of the agreement.
The Financial Urgency of the Motion
[8] There is no question that the Applicant was in a desperate financial situation and that her motion for relief was urgent.
[9] I accept the evidence of the Applicant that the Respondent had been in control of the family finances and had left the property with the first and second mortgages in default. Power of Sale proceedings had been commenced and deadlines imposed to bring the mortgages in good standing.
[10] By January 2015, the financial situation of the Applicant was such that she was forced to sell a number of her personal assets, to cash in her RRSPs and to borrow heavily from her father as well as re-negotiate the interest rate on the first mortgage and find tenants for the matrimonial home.
[11] During this time period, the Respondent failed to provide any spousal or child support despite numerous requests from the Applicant.
General Principles of Costs
[12] 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, R.S.O. 1990, c. C.43, 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 a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[13] In Fong et al. v. Chan et al. (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:
- to indemnify successful litigants for the cost of litigation;
- to encourage settlements; and
- to discourage and sanction inappropriate behaviour by litigants.
[14] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. If success is divided, the court may apportion costs as appropriate.
[15] Rule 24(8) of the Family Law Rules provides that: “If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”
[16] The factors which must be considered when ordering costs are listed in Rule 24(11):
- the importance, complexity or difficulty of the issues;
- the reasonableness or unreasonableness of each party’s behaviour in the case;
- the lawyers’ rates;
- the time properly spent on the case, including conversations between the lawyers and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signatures of the order;
- expenses properly paid or payable; and
- any other relevant matter.
[17] In addition to the factors enumerated in Rule 24(11), one must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), albeit a case which was not a family law case, stated that the fixing of costs does not begin or end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the amount of costs is also a relevant consideration.
[18] Although the Court of Appeal indicates that the setting of costs is not a mechanical calculation of hours multiplied by rates, the factors set out in Rule 24(11) do direct the court in coming to its decision to look at the time spent by the lawyer for the successful party and the rates of that lawyer.
[19] Rule 24(11)(f), read in conjunction with s. 131 of the Courts of Justice Act, provides the court with a wide discretion when deciding the issue of costs. The conduct of the parties is one of the additional factors that may be considered when exercising the discretion whether or not to order costs.
The Positions of the Parties
[20] Counsel for the Applicant was called to the bar in 1976 and has 39 years of experience as a lawyer. His charge out rate is $400.00 per hour and $1,500.00 for a half-day.
[21] The Applicant requests costs on a full indemnity basis for all work done with respect the court dates and appearances on February 5, 26 and on March 20, 2015. In the alternative, should the Court find that the preparation of the initial documents served a dual purpose, the Court should award partial recovery for work done between January 28, 2015 until but not including February 5, 2015 and thereafter full indemnity costs from February 5 to March 20, 2015.
[22] The Bill of Costs filed by the Applicant calculates partial indemnity costs in the sum of $12,103.03 and full indemnity costs of $18,900.54.
[23] The Applicant submits that the Respondent has acted in bad faith and that, pursuant to Rule 24(8) of the Family Law Rules, costs on a full indemnity basis are warranted as well and also an order for immediate payment.
[24] The Respondent submits that she did her best to prepare responding documents notwithstanding being short served with the Applicant’s motion material.
[25] Further, the Respondent states that the parties were able to reach an agreement and agree to the terms of the consent order on February 5, 2015.
[26] Finally, the Respondent argues that the Applicant’s costs are excessive, that they could have been partially avoided and that costs should be limited to the motion argued on March 20, 2015 on a partial indemnity scale fixed in the amount of $3,000.00.
Discussion
[27] The Applicant had no choice but to bring this motion forward on an urgent basis and all of the steps taken by her counsel were necessary and reasonable. There is however some merit to the argument raised by the Respondent that, given short service, the Case Conference scheduled for February 5 could have been adjourned and resolved without the necessity of a court attendance.
[28] I agree that the Respondent has demonstrated bad faith by ignoring his financial obligations to his wife and children and by failing to fulfill his promises contained in the agreement made on February 5.
[29] There is no question that the Applicant was completely successful and no reason why costs should not be awarded.
[30] I also find the charge out rates of the Applicant’s lawyer to be reasonable given his experience and that he acted reasonably and professionally in representing the Applicant.
[31] Having considered all of the factors set out above including the comments of the Court of Appeal in Boucher regarding the overriding principle of reasonableness, costs are awarded to the Applicant on a partial indemnity basis to and including February 5, 2015 and thereafter on a full indemnity basis fixed in the sum of $10,000.00 payable immediately.
Patrick Smith J.
Date: April 23, 2015
CITATION: Godo v. Desjardins, 2015 ONSC 2657
COURT FILE NO.: FC-15-229
DATE: 2015/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Else-Britt Godo, Applicant
AND
Jacques Yves W. J. Desjardins and Tasha Lynn Dean, Respondents
BEFORE: Patrick Smith J.
COUNSEL: David J. Hughes, for the Applicant
Melody Loubert, for the Respondents
ENDORSEMENT ON COSTS
Patrick Smith J.
Released: April 23, 2015