COURT FILE NO.: 397-11
DATE: 20150608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Robert Finamore
Applicant
– and –
Sylvia Catherine Finamore
Respondent
Ian J.H. Brown, for the Applicant
Sylvia Catherine Finamore, acting in person
HEARD: February 20, 2015
belleghem j.
Cost Endorsement
[1]. Reasons for judgment were released by me on June 3, 2014. In the final paragraph, I provided that Mr. Finamore was to deliver written cost submissions within 30 days, Mrs. Finamore was to respond within 15 days, and Mr. Finamore had 5 days to reply. Mr. Finamore never delivered cost submissions. Mrs. Finamore filed an affidavit on July 15, 2014 claiming roughly 100 hours of compensation and $825 in disbursements.
[2]. Judgment was taken out in September of 2014. A month later, Mr. Finamore went into personal bankruptcy. Consequently, on November 3, 2014, Mrs. Finamore filed a letter, with numerous exhibits, asking that the original judgment be varied in several respects to take into account Mr. Finamore’s bankruptcy. Ultimately, as I had not received anything from Mr. Finamore, I required Mrs. Finamore to take out an appointment to settle the order and to fix the costs, which application came on before me on February 20, 2015.
[3]. At that time, Mrs. Finamore renewed her request for several variations in the judgment. Most of these sought to take into account the fact that Mr. Finamore had gone into personal bankruptcy a month after the formal judgment had been taken out. I informed her that, as the judgment had been taken out, there was no issue with respect to the form of the judgment with which I could assist her, and that I would only deal with the issue of costs. I also advised her that she may have rights of appeal with respect to the judgment, and that she may also have rights with respect to the bringing of proceedings to enforce the judgment by way of collection procedures. In light of this being a matrimonial matter, and in view of Mr. Finamore’s personal bankruptcy following judgment, I also suggested that it would be in her best interest to retain counsel to assist her with whatever further proceedings might be appropriate, given the change in circumstances after taking formal judgment. The present endorsement, therefore, deals only with the issue of the costs of the proceedings before me.
[4]. Mr. Brown, counsel for Mr. Finamore at trial, argued that at trial, success was essentially divided. He pointed out that his client had paid him a considerable amount of money to represent him at trial, while Mrs. Finamore represented herself. He said, that in light of divided success, he would not be asking for costs, but that for the same reason, there should be no costs awarded to Mrs. Finamore. In support of his argument, he recalled that through the course of the five day trial before me he rendered considerable assistance to Mrs. Finamore in the presentation of her case.
[5]. Mrs. Finamore readily conceded that there may indeed be some merit to Mr. Brown’s argument of divided success, but that she was certainly the more successful litigant. She added that the trial itself had not necessarily been shortened by Mr. Brown’s assistance as counsel for the one side, because his client, Mr. Finamore, had essentially stonewalled Mrs. Finamore with respect to many productions. Because of this, she was put to the laborious task of obtaining and providing to Mr. Brown, documents that should have been provided to him by his own client, Mr. Finamore.
[6]. I have recently reviewed my reasons for judgment. I agree with Mrs. Finamore, that Mr. Brown certainly conducted himself in the best traditions of advocacy on behalf of Mr. Finamore, - he certainly did everything he could to expedite the trial on his client’s behalf. However, his client undercut both Mr. Brown and Mrs. Finamore by failing or refusing to provide the timely disclosure of which she complained. Understandably, this Mrs. required Mrs. Finamore to allocate considerable time and expense to several matters before the court which needed to be litigated.
[7]. A review of the reasons for judgment will show that there were numerous areas of dispute which, but for, Mrs. Finamore’s laborious efforts at production could not possibly have been resolved, directly due to the otherwise paucity of evidence available on the particular dispute. Mr. Finamore’s personal behaviour towards his own counsel and his ex-wife throughout the proceedings, from their inception until judgment, contributed greatly to what might otherwise have been a matter which could have been settled to the satisfaction of both parties without a trial.
[8]. With respect to Mr. Brown’s arguments that success was “divided”, while my reasons indicate that Mr. Finamore was certainly successful in a few areas, I agree with Mrs. Finamore that she was certainly far more successful. She should, therefore, be entitled to costs accordingly.
[9]. It is always a difficult matter to assess the appropriate quantum of costs to be awarded a self-represented person. While the quantity of work may be present, the lack of legal skill works as a disadvantage to both the presenter – in this case Mrs. Finamore – and to the process. In the present case, however, Mrs. Finamore, despite the occasional meandering into areas of irrelevance, handled her own case in a relatively professional manner. I do agree, however, that Mr. Brown was certainly of assistance as the only counsel in the case. His professional conduct, on behalf of his client, did indeed expedite the trial. His advocacy probably reduced the trial time, had both parties been unrepresented, by anywhere from 25 to 50 percent. I therefore take the forgoing factors into account in assessing costs.
[10]. In addition to the forgoing factors, I take into account, the importance of the issues to the parties, and the difficulties of the presentation of the evidence on either side to establish their case. The equalization payment and miscellaneous payments brought the amount in dispute (other than the support issues) to approximately $137,000. Mrs. Finamore was certainly successful on the equalization issue. She was also successful on the important “EMCO” issue, as well as the spousal and child support issues.
[11]. I take into account the reasonable expectations of the parties. This was a five day complex trial. It involved not only many smaller hotly contested issues, but an equalization payment of $137,000 together with the important support issues. My view is that the parties would not expect to have been called upon to pay legal costs in excess of $50,000.
[12]. Mrs. Finamore is claiming $825 in disbursements. I am satisfied from the voluminous material filed that the disbursements amount claimed, primarily for photocopies, is proven.
[13]. With respect to the costs she should recover for the trial proper, taking into account, her many years of experience working at a bank, and the skill that she brought from that occupation into the presentation of the case as counsel on her own behalf, I find that she should be awarded $1,500 per day for each day of the five day trial, for a total of $7,500.
[14]. The total amount she has claimed of approximately 100 hours is certainly reasonable. After deducting approximately 40 hours of preparation and presentation time, for the five days of trials, I am left with 60 hours of time being claimed, from the inception of the proceedings to the trial date. (The $3,500 outstanding cost order of Justice Skarica against Mrs. Finamore has already been taken into account in the original judgment adjustments.)
[15]. The level of expertise of Mrs. Finamore would certainly be something approaching the range of that of a junior law clerk or student, or perhaps even more. For the 60 hours pre-trial preparation time, I therefore allow, $100 per hour for 60 hours, for an additional $6,000 on top of the $7,500 for her trial costs. In addition, of course, she will have her disbursements of $825.
[16]. A cost order will issue in accordance with these reasons.
“Justice J.R. Belleghem”
Justice J.R. Belleghem
Released: June 08, 2015
COURT FILE NO.: 397-11
DATE: 20150608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Robert Finamore
Applicant
– and –
Sylvia Catherine Finamore
Respondent
cost endorsement
Justice J.R. Belleghem
Released: June 08, 2015