Fleck v. Fleck, 2015 ONSC 471
COURT FILE NO.: 722/10 (Guelph)
DATE: 2015-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CATHERINE T. FLECK
Cheryl Stelzer, for the Applicant
Applicant
- and -
CASEY R. FLECK
George Johnson, for the Respondent
Respondent
HEARD: December 3, 2013,
at Guelph, Ontario
Price J.
COSTS ENDORSEMENT
Nature of the Proceeding
[1] The Respondent, Mr. Fleck, failed to comply with an order made by Conlan J. on October 16, 2012. Paragraphs 2 and 3 of that order required Mr. Fleck to produce to his wife, the Applicant, Ms. Fleck, any documents in his possession from his group medical/dental insurer, Manulife Financial, regarding his medical and dental benefits. The order also required that he give a Direction to Manulife to receive claims directly from Ms. Fleck and to reimburse her directly for medical/dental expenses she incurred for herself or the parties’ daughter.
[2] Ms. Fleck brought a motion to have Mr. Fleck found in contempt of Conlan J.’s order, including paragraphs 2 and 3, relating to the medical/dental benefits, and other paragraphs which required Mr. Fleck to pay support to Ms. Fleck. At the hearing of Ms. Fleck’s motion on December 3, 2013, Mr. Fleck’s lawyer made preliminary objections that:
a) Ms. Fleck had failed to prove that Mr. Fleck had received personal notice of Conlan J.’s order, which was required for a finding of contempt to be made against him.
b) The court had no power to punish Mr. Fleck for contempt of an order that required him to pay money.
[3] Upon hearing Mr. Fleck’s objections, the court read Conlan J.’s order to Mr. Fleck and made a further, more specific, order as to how he was to comply with its terms. While finding that Mr. Fleck had failed to comply with paragraphs 2 and 3 of Conlan J.’s order, the court made no finding as to whether he had wilfully disobeyed the order.
[4] The parties have been unable to agree on the costs of Ms. Fleck’s motion. The court must therefore determine whether Ms. Fleck, who moved for a finding of contempt against her husband, is entitled to the costs of her motion based on the alternative remedy that was granted, without having obtained a finding that her husband was in contempt. If Ms. Fleck is entitled to her costs, the court must determine the amount.
BACKGROUND FACTS
[5] On November 29, 2011, Snowie J. made a final order in the present proceeding. Paragraphs 21 of her order provided that:
Mr. Fleck would maintain Ms. Fleck and the parties’ 7 year old daughter, Emily, on his drug, dental, medical, and extended health plan for so long as he is obligated to pay support for Emily and, for Ms. Fleck, for so long as the Plan permits;
Upon Ms. Fleck submitting receipts for repayment under Mr. Fleck’s medical plan, Mr. Fleck was to take immediate steps to submit the receipts to his medical plan;
Immediately upon receipt of payment back from the medical plan, Mr. Fleck was to remit the amount paid by the medical plan directly to Ms. Fleck but at minimum, the payments were to be made to Ms. Fleck within 60 days of her presenting the receipts to Mr. Fleck; and
If Mr. Fleck failed to comply with the timelines, this would result in a consent judgment in the full amount of the receipts submitted by Ms. Fleck to Mr. Fleck for the purposes of enforcement by the court.
[6] On September 18, 2012, Ms. Fleck brought a motion for summary judgment to enforce paragraph 21 of Snowie J.’s order, in relation to medical/dental expenses that Ms. Fleck and Emily had incurred before the date of the order, and that Mr. Fleck had failed to reimburse to her. On October 18, 2012, Conlan J. held that Mr. Fleck’s obligation to pay expenses incurred before Snowie J.’s order was a triable issue. Ms. Fleck ultimately decided not to proceed to trial on that issue.
[7] Paragraphs 2 and 3 of Conlan J.’s Order dated October 18, 2012, required Mr. Fleck to do the following:
a) Produce any documents in his possession relating to Manulife Financial, his group medical and dental insurer, regarding his insurance benefits; and
b) Give a Direction to Manulife directing it to receive claims directly from Ms. Fleck and to reimburse directly to her the medical/dental expenses she had incurred for herself or the parties’ daughter.
[8] On March 13, 2013, Ms. Fleck’s lawyer, Cheryl Stelzer, wrote to Mr. Fleck’s lawyer, George Johnson, requesting compliance with paragraph 3 of Conlan J.’s Order dated October 18, 2012. She enclosed an “Authorization and Direction” to Mr. Fleck’s group medical/dental insurer, Manulife Financial, for Mr. Fleck to sign and send to Manulife, to allow Ms. Fleck to submit claims for herself and her daughter directly to the Plan and to receive reimbursement directly from it. Mr. Johnson, in his costs submissions, states that he (Mr. Johnson) was hospitalized intermittently from March 4 to April 21, 2013, and returned to work in June 2013, but that he asked Mr. Fleck to forward the Direction to his insurer, which was done. Mr. Johnson does not state whether he is relying solely on information from his client in this regard.
[9] Ms. Stelzer did not receive any reply to her request that Mr. Fleck send the Authorization and Direction to Manulife, nor any reply to follow-up letters that she sent dated August 9, August 15, and September 19, 2013. Mr. Johnson states, in his costs submissions, that despite three requests, Manulife did not respond. Again, it is not clear whether he is relying solely on his client’s information in this regard.
[10] Ms. Fleck made the present motion on October 16, 2013, to have Mr. Fleck found in contempt of paragraphs 2 and 3 of Conlan J.’s order, as well as other paragraphs, which required him to pay support to Ms. Fleck. The motion was personally served on Mr. Fleck on October 21, 2013. Later that day, Mr. Johnson requested an adjournment of the motion from November 5 to December 3, 2013, to which Ms. Stelzer consented.
[11] Mr. Johnson delivered Mr. Fleck’s responding material on November 21, 2013, including an affidavit, sworn by Mr. Fleck, in which he stated only that: “I forwarded all materials to the Applicant’s solicitor.” and “I do not know why Manulife Financial is not responding to my letters directing payments to her don’t (sic) know why the direction was not followed by them.” Mr. Fleck did not attach to his affidavit a copy of his signed Authorization and Direction or of any of his correspondence to Manulife.
[12] At the hearing on December 3, 2013, Mr. Johnson made preliminary objections to Ms. Fleck’s motion. He based his objections in part on the absence of proof that Conlan J.’s Order was read to Mr. Fleck or personally served on him. He based his objections also on the monetary nature of the order that Ms. Fleck alleged that Mr. Fleck had breached, requiring the payment of support. He also characterized the order requiring Mr. Fleck to send a Direction to Manulife as monetary in nature, the breach of which, he argued, was not punishable as contempt.
[13] Upon hearing Mr. Johnson’s objections, and noting that Conlan J.’s endorsement had not specified how its terms were to be communicated to Mr. Fleck, or how he was to communicate his compliance to Ms. Fleck, I found that the “the court has made its previous orders in a manner that has resulted in non-compliance, whether intentional or not.”
[14] As Mr. Fleck was before the court on December 3, I adjourned Ms. Fleck’s motion to March 24, 2014, on the following terms, set out in my endorsement, which was read to Mr. Fleck:
a) Mr. Fleck shall forthwith comply with the Order of Snowie J. dated November 29, 2011, including the portion thereof which incorporates paragraph 21 of the parties’ Minutes of Settlement filed on that date, which has been read to Mr. Fleck in Court, on the record, today.
b) Mr. Fleck shall forthwith comply with the Order of Conlan J. dated October 18, 2012, including paragraphs 2 and 3, which have been read to Mr. Fleck in court, on the record, today.
c) In the interval, pending compliance in full with the above-mentioned terms (which shall be verified by either the signed confirmation of both parties and their solicitors or further order of this court), Mr. Fleck shall forthwith pay to Ms. Fleck, on a without prejudice basis all expenses incurred from November 29, 2011 onward of a medical, drug, health or dental nature for herself or Emily Fleck, that are set out in any affidavit sworn by Catherin T. Fleck. Such expenses shall be itemized and totaled in two schedules in each affidavit, one listing those expenses that pertain to Ms. Fleck and the other listing those expenses that pertain to Emily. The receipts for the expenses shall be attached to the affidavit, to be delivered to Mr. Fleck’s solicitor (and his solicitor shall deliver such affidavit and the receipts forthwith personally to Mr. Fleck and shall forthwith provide Mr. Fleck’s signed confirmation of receipt of same to Ms. Fleck’s solicitor) and a copy of the receipts shall be attached to an identical affidavit, with Mr. Fleck’s original signature, submitted to the Family Responsibility Office for enforcement.
d) The Family Responsibility Office shall enforce the present Order by collecting the amounts set out in the affidavits submitted to that Office by Ms. Fleck – treating the expenses of her own as spousal support and the expenses of Emily as contributions to s. 7 expenses.
e) Either party may seek re-adjustment of responsibility for such payments at trial.
[15] My order dated December 3, 2013, further provided that if Mr. Fleck had not, since October 16, 2013, had any other documents in his possession, power or control of the nature which he had been ordered to produce, he was required, by December 13, 2013, to produce to Ms. Fleck an affidavit stating that fact, in a detailed and unequivocal manner.
[16] The order granted leave to Ms. Fleck to amend her motion, granted both parties leave to deliver further evidence in relation to the motion, and further granted the parties leave, if unable to agree on costs of their attendance on December 13th, to make written submissions, not to exceed 2 pages with Costs Outlines, by December 15, 2013. I have since reviewed the parties written submissions and Ms. Fleck’s Bill of Costs.
[17] The parties later apparently settled Ms. Fleck’s motion, as it was withdrawn prior to the parties’ next appearance on March 24, 2014. This is further reflected by the fact that the parties’ costs submissions and Ms. Fleck’s Bill of Costs cover the motion in its entirety, rather than only their appearance on December 3, 2013.
POSITIONS OF THE PARTIES
a) Ms. Fleck’s Position
[18] Ms. Fleck claims costs in the amount of $3,088.97 for her motion, comprised of the following:
a) $2,553 for fees, representing 6.8 hours spent by Ms. Stelzer at an hourly rate of $300 per hour (a total of $2,040), and 5.4 hours spent by Terresa Janssen at an hourly rate of $95 (a total of $513).
b) $331.49 for H.S.T. on fees.
c) $180.60 for disbursements, as set out in the Bill of Costs.
d) $23.48 for H.S.T. on taxable disbursements.
[19] Ms. Fleck relies on her partial success in the motion. Neither party has tendered any offers to settle delivered before the motion that they claim were more favourable to the recipient than the order made on December 3, 2013.
b) Mr. Fleck’s Position
[20] Mr. Fleck proposes that the issue of Ms. Fleck’s costs of the motion be deferred until the court determines whether Mr. Fleck was, in fact, in contempt. He submits that the motion was adjourned on terms, without submissions from the parties, save and except with regard to paragraphs 2 and 4 of Conlan J.’s Order.
[21] Mr. Fleck further submits that if he is correct that there is no remedy for contempt of a money judgment or enforcement of money issues, as other remedies are available, the determination of the costs of the motion is premature.
ANALYSIS AND EVIDENCE
1. General Principles
a) Principles to be balanced
[22] In awarding costs, I must balance two conflicting principles, namely, to indemnify the successful litigant for her cost of enforcing her rights or, in this case, her child’s right, and to avoid making potential litigants feel unduly hesitant to defend their rights by requiring them, as unsuccessful litigants, to bear all the costs of the successful party as well as their own.[^1] The ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently.[^2]
b) Discretion to be exercised
[23] The entitlement to costs and the appropriate amount to be paid is “within the court’s discretion”.[^3] The Family Law Rules direct the court as to how its discretion as to costs is to be exercised. Rule 24(1) presumptively entitles a successful party to costs. Although it circumscribes the broad discretion on costs which s. 131(1) of the Courts of Justice Act confers on the court, it does not completely remove a judge’s discretion.[^4] Rules 24(4) and 24(5), for example, state that a successful party may be deprived of costs if he or she has behaved unreasonably.
c) Objectives to be Served
[24] Indemnification of the successful party is the paramount objective, but not the only one, to be served by a costs order. Other objectives that the court has recognized include encouraging settlement, discouraging frivolous proceedings and unnecessary steps in litigation,[^5] and preserving access to justice.[^6]
[25] Ms. Fleck was successful in obtaining an order for the immediate payment of her and her child’s expenses. Although I did not find Mr. Fleck in contempt Conlan J.’s order, I made a further order that was designed to ensure his compliance with its terms.
[26] Rule 24 of the Family Law Rules provides, in part:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.
(8) 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. [Emphasis added]
[27] The portions of rule 24 highlighted above permit the court, on a motion to have the opposing party found in contempt, to make an order for compliance and for costs in the absence of a finding of contempt. This was the result in Silver v. Silver, where Minnema J. dismissed the husband’s motion to have his wife found in contempt of an order granting him access and, in spite of the presumption that costs follow the result, ordered the wife to pay the husband’s costs in the amount of $3,500, on the ground that she had precipitated the motion by her unreasonable behaviour in relation to her husband’s access.[^7]
d) Should costs be reserved
[28] Mr. Fleck proposed in his costs submissions that the costs of the motion be left to be determined at a future hearing. Rule 24(10) of the Family Law Rules requires that costs be decided at each step in the case. The Order made on December 3, 2013, was intended to resolve the motion by achieving compliance with the Order of Conlan J. If the Order had this effect, as it apparently did, a return of the motion for further determination was unnecessary.
[29] In any event, the judge hearing a return of the motion, or at trial, would not be in a better position than I am to rule on Ms. Fleck’s claim for costs in relation to the issues argued before me. It is therefore incumbent on me to decide the costs rather than reserving them to a judge presiding in the future.
e) Factors to be Considered
[30] Rule 24(11) lists the factors which the court should consider in quantifying costs:
- (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.
1. Importance, Complexity and Difficulty
[31] Among motions for a finding of contempt, this one was moderately complex. It required:
a) A distinction between the monetary and non-monetary aspects of Conlan J.’s Order;
b) A chronology of the steps in the judicial proceeding over a two year period from November 29, 2011, to December 3, 2013;
c) Consideration of the responsibility for non-compliance as between Mr. Fleck and his lawyer;
d) Consideration of Mr. Fleck’s preliminary objections, based on the requirement for evidence that Conlan J.’s Order was read to Mr. Fleck or given personally to him as a prerequisite for a finding of contempt.
e) A consideration of the civil law of contempt.
2. Reasonableness of Each Party’s Behaviour
[32] As noted above, Rule 24(1) provides that a successful party is presumed to be entitled to the costs of the proceeding. In the normal course, such costs are awarded on a partial indemnity scale; however, the court has the discretion to order costs to be paid on a substantial or full indemnity scale in exceptional cases.[^8]
[33] Rule 24(4) of the Family Law Rules, reproduced above, explicitly recognizes the principle that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. As noted above, the rule provides that a successful party who has behaved unreasonably during a case may be ordered to pay all or part of the unsuccessful party’s costs. In the present motion, success was divided, in the sense that Mr. Fleck was not found in contempt but paragraphs 2 and 4 of the order of Conlan J. were enforced.
[34] Mr. Fleck failed to comply with paragraphs 2 and 4 of Conlan J.’s Order dated October 16, 2012. His non-compliance, whether wilful or not, was his responsibility, and resulted in the motion being brought. While his failure to comply with Conlan J.’s Order was not sufficiently serious to warrant imposing costs on a full indemnity scale, it attracts liability for partial indemnity costs based on the principles of indemnification and sanctioning of unreasonable behaviour. Additionally, it is a factor to be taken into account in fixing the appropriate amount of costs to be paid to Ms. Fleck.
[35] Mr. Fleck seeks to excuse his non-compliance based, in part, on Manulife’s lack of response to his Authorization and Direction, which he says he forwarded to them. In the absence of the signed Authorization and Direction and the correspondence which he says he sent, I do not accept Mr. Fleck’s evidence that he sent the Authorization and Direction and followed it up with requests for a response. In any event, as I indicated in Cuff v. Gales, with regard to a litigant’s obligation to disclose records in the possession of a non-party, the obligation requires the litigant to make his request and follow-ups in writing and to provide a copy to the other party, and either to apply to the court for an order against the non-party or, at least, to do everything necessary to enable the other party to seek the appropriate remedy.[^9] This obligation applies equally to the Order of Conlan J., which required Mr. Fleck to direct Manulife to take steps that only he, as the insured, could require the insurer to take.
[36] The Supreme Court of Canada in Young v. Young,[^10] in 1993, set out the principle that should guide this court in deciding whether to award costs on a substantial liability scale. McLaughlin J., as she then was, stated:
Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs;
[37] The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 18(14), dealing with the costs consequences of a failure to accept an Offer to Settle, instead differentiates between “costs” and “full recovery of costs”. Rule 24(8) also refers to “costs on a full recovery basis,” where a party has acted in bad faith.
[38] In Sims-Howarth v Bilcliffe, Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules.[^11] He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v D.M.[^12]
[39] It is generally not appropriate to award more than 85 per cent of a successful litigant’s bill, unless the unsuccessful litigant has acted unreasonably or in bad faith, to the extent that censure is appropriate.[^13] While Mr. Fleck acted unreasonably, I did not find that he had wilfully disobeyed Conlan J.’s Order. I therefore do not find that his conduct was reprehensible or outrageous.[^14] Nevertheless, in a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis.[^15] This still leaves a range of costs from nominal to just short of full recovery.
[40] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful, but unreasonable behavior will, in appropriate circumstances, result in a higher award of costs. In Perri v. Thind et al., Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court.[^16] In doing so, he stated that costs orders are not designed mainly to be a punishment. In that case, however, the motion judge had awarded costs four times greater than the successful litigant’s substantial indemnity costs. Henderson J. himself noted that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct.[^17]
3. The Lawyer’s Rates
[41] Ms. Fleck was represented in the motion by Cheryl Stelzer. Ms. Stelzer was called to the Ontario Bar in 1993 and has practiced law for 20 years before she argued the motion. She was assisted by her Law Clerk, Terresa Janssen. Ms. Stelzer claims costs for her own fees at the rate of $300 per hour and for Ms. Janssen’s fees at the rate of $95.
[42] The “Information for the Profession” bulletin, from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”)[^18], suggests maximum hourly rates (on a partial indemnity scale) of $350.00 for lawyers, such as Ms. Stelzer, with 20 years’ experience or more. It suggests a maximum hourly rate of $80 for law clerks. While it is arguable that these rates should be reserved for matters of the greatest complexity, I am satisfied they are reasonable in the present motion, which involved moderate complexity.
[43] The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate to make an adjustment to the rates suggested in the Costs Bulletin based on inflation. Smith J. took this approach in First Capital (Canholdings) Corp. v. North American Property Group.[^19]
[44] Ms. Stelzer’s partial indemnity rate of $350 in 2005 is the equivalent of $407.52 today. Her Law Clerk’s rate of $80 in 2005 is the equivalent of $93.15 today, according to the Bank of Canada’s online Inflation Calculator. The hourly rates of $300 and $95, which Ms. Stelzer claims, are therefore reasonable, having regard to her and her Law Clerk’s respective partial indemnity rates, as suggested in the Costs Bulletin, when adjusted for inflation.
[45] Aitken J., in Geographic Resources, allowed the Defendants/Respondents’ costs of an appeal from a Master’s order on a partial indemnity scale in the amount their lawyer had charged.[^20] She rejected the Plaintiffs/Appellants’ argument that the Respondents should be awarded less than they had been charged because the parties had agreed that costs would be paid on a partial indemnity scale. Aitken J. began by considering the Costs Bulletin. She considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group, but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she used their unadjusted rates.[^21]
[46] Aitken J. made it clear that the starting point in arriving at an appropriate hourly rate when fixing costs is the Costs Bulletin, not the actual hourly rate the lawyer charged her client. The actual rate charged is irrelevant, except as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged, in keeping with the principle of indemnification.[^22] The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same place.
[47] Although Geographic Resources was a civil action, the approach that Aitken J. took in that case applies equally in the family law context. The court adjusts the hourly rate, based on the Costs Bulletin, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 24. If an excessive amount of time was spent, or too many lawyers worked on the file, the court reduces the resulting amount of fees accordingly. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant. On this basis, the amount that Ms. Fleck claims as costs need not be discounted to reflect the amount Ms. Stelzer charged her based on the fact that costs are being awarded on a partial indemnity scale.
4. Time Properly Spent on the Case
[48] Ms. Stelzer has submitted a Costs Outline in which she claims for 6.8 hours of her time and 5.4 hours spent by her Law Clerk, Ms. Janssen. The time is documented in a print-out of docket entries from an accounting software program recording time spent from February 5, 2013, to December 3, 2013, with the addition of .5 hours spent reporting to the client and preparing an Offer to Settle on December 5 and .6 hours spent preparing costs submissions on December 11, 2013. While my endorsement referred only to the costs of the appearance on December 3, 2013, and Ms. Stelzer spent only 2.5 hours of the time she claims on that day, I am extending my award of costs to Ms. Fleck to the motion as a whole, on the basis that it was resolved without the need for a further court appearance.
[49] Mr. Johnson submits that time spent prior to March 13, 2013, when Ms. Stelzer sent the Authorization and Direction to him, should not be included. Ms. Stelzer has claimed only 1 hour of time spent before March 13, 2013, and Ms. Janssen spent that time on February 5, 2013, drafting the Orders of Conlan J. dated October 18, 2012, and February 1, 2013, and drafting the Authorization and Direction which the Order required Mr. Fleck to sign.
[50] Had Mr. Fleck complied fully with the Order that Conlan J. made on October 16, 2012, in the four months that followed, it likely would not have been necessary for Ms. Stelzer to draft any of the documents that Ms. Janssen prepared on February 5, 2013. He would have prepared the Authorization and Direction himself and submitted it to Manulife. I find that this time was spent enforcing Conlan J.’s Order and is properly claimed in the present motion.
[51] Mr. Johnson has otherwise not challenged the time Ms. Stelzer and her Law Clerk spent on the motion. He also has not disclosed the time he spent himself on the motion. In Risorto v. State Farm Mutual Automobile Insurance Co., Winkler J., then a motion judge, stated:
The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made. In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter. [23] (Emphasis added)
[52] In the absence of information from Mr. Johnson as to the time he spent, I find that the time claimed by Ms. Stelzer to be reasonable.
5. Other Relevant Matters
(a) Proportionality
[53] I have considered the proportionality of the costs that Ms. Fleck has claimed. The principle of proportionality was added to the Rules of Civil Procedure by the amendment of Rule 1.04, which I apply by analogy to the present motion as there is no equivalent provision in the Family Law Rules. Rule 1.04 directs that the Rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Sub-Rule 1.1, which was added, provides:
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.
[54] Ms. Fleck did not “over-lawyer” the motion. Mr. Fleck’s compliance with Conlan J.’s Order was needed in order to secure the medical, dental, and drug insurance coverage to which Ms. Fleck and her daughter were entitled. The $3,088.97 that Ms. Fleck claims, inclusive of H.S.T. and disbursements, is not disproportionate to the amount that was at stake in the motion.
(c) What is fair and reasonable
[55] I must, at this point, step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved. In making this determination, I take into account the reasonable expectation of the parties concerning the amount of costs.[^24]
[56] The amounts awarded in similar motions where no finding of contempt was made should have informed Mr. Fleck’s reasonable expectation of the costs he might be required to pay even if he avoided a finding of contempt. I have noted above that Minnema J. awarded the husband in Silver v. Silver his costs in the amount of $3,500 after declining to find the wife in contempt.
[57] Having regard to all of the circumstances, including the resources of the parties, their conduct, and the amounts at stake in the motion, and the amount awarded in similar circumstances in Silver v. Silver, I conclude that Mr. Fleck should reasonably have expected to pay at least $3,088.97 for Ms. Fleck’s costs of this motion.
CONCLUSION AND ORDER
[58] Based on the foregoing, I fix Ms. Fleck’s costs of that portion of her motion that I determined at:
a) $2,553.00 for fees
b) $331.49 for H.S.T. on fees
c) $180.60 for disbursements
d) $23.48 for H.S.T. on disbursements
TOTAL: $3,088.97
[59] These costs shall be payable forthwith, together with 3% post-judgment interest from December 3, 2013, and shall be enforceable as child support by the Family Responsibility Office.
Price J.
Released: January 21, 2015
CITATION: Fleck v. Fleck, 2015 ONSC 471
COURT FILE NO.: 722/10 (Guelph)
DATE: 2015-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CATHERINE T. FLECK
Applicant
- and -
CASEY R. FLECK
Respondent
COSTS ENDORSEMENT
Price J.
Released: January 21, 2015
[^1]: Mark Orkin, The Law of Costs (2nd edition) (2001 Canada Law Book), p. 23
[^2]: British Columbia (Minister of Forests) v. Okanagan Indian Band, , 2003 SCC 71, [2003] 3 S.C.R. 371 at paras. 25 and 26, 2003 71.
[^3]: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131
[^4]: M. (A.C.) v. M.(D.) (2003), , 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181, [2003] O.J. No. 3707 (ON C.A.)
[^5]: Fellowes, McNeil v. Kansa General International Insurance Co., 37 O.R. (3d) 464 at para. 10, 1997 CanLII 12208 (ON S.C.),
[^6]: 1465778 Ontario Inc. v. 1122077 Ontario Ltd.(2006), 82 O.R. (3d) 757 at para. 45, 2006 CanLII 35819, (ONCA), per Feldman J.A.
[^7]: Silver v. Silver, 2013 ONSC 7235, per Minnema J., at para. 37.
[^8]: 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992) 7 C.P.C. (3d) 15 (Ont. Gen. Div., per Blair J., as he then was) at p. 17, approved in Murano v. Bank of Montreal 1998 CanLII 5633, (1998) 41 O.R. (3d) 222 (C.A.) at p. 244
[^9]: Cuff v. Gales, 2014 ONSC 4756, paras. 119-125.
[^10]: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3.
[^11]: Sims-Howarth v Bilcliffe, 2000 CanLII 22584, [2000] O.J. No. 330 (S.C.J.)
[^12]: C.A.M. v D.M., 2003 CanLII 18880 at para. 42, [2003] O.J. No. 3707 (C.A.),.
[^13]: Osmar v. Osmar (2000), 2000 CanLII 20380, 8 R.F.L. (5th) 387 (Ont. S.C.).
[^14]: TMS Lighting v. KJS Transport, 2014 ONSC 7148, paras. 23 to 31.
[^15]: Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
[^16]: Perri v. Thind et al. (2010), 98 O.R. (3d) 74, 2009 CanLII 34977, (S.C.).
[^17]: Perri, at paras. 24-26, 32-33.
[^18]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005). The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[^19]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359.
[^20]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041,
[^21]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041
[^22]: The principle that costs should not exceed the amount charged was articulated by Corbett J. in Mantella v. Mantella, 2006 CanLII 17337 (ON SC), (2006), 27 R.F.L. (6th) 76 (S.C.J.), subsequently approved by Aitken J., sitting as a Divisional Court judge in Geographic Resources.
[^23]: Risorto v. State Farm Mutual Automobile Insurance Co. (2003,) 2003 CanLII 43566 (ON SC), 64 O.R. (3d) 135, 32 C.P.C. (5th) 304 (ON S.C.), per Winkler J., at para. 10
[^24]: Referring to: Boucher v. Public Accountants Council for the Province of Ontario,2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) (released June 22, 2004); Moon v. Sher, [2002] O.J. No. 4651 (C.A.) (released November 16, 2004); and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), [2005] O.J. No. 160 (C.A.) (released January 24, 2005)