ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-14-0015
DATE: 2015-11-18
B E T W E E N:
Diana Robert McKay,
Mary Ann Currie, for the Applicant
Applicant
- and -
Douglas James Langstaff,
The Respondent being unrepresented
Respondent
HEARD: September 14 & 23, 2015
At Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Decision on Costs & Form of Order
[1] This is a decision on the costs of a trial held May 26, 27 and 28, 2015. I will also deal with the form of order proposed by the solicitor for Ms. McKay.
Costs
[2] The main issues at trial were Ms. McKay’s claim for a remedial monetary award for unjust enrichment and her claim for spousal support.
[3] The parties resided together, as unmarried spouses, for 26 years.
[4] I found that Ms. McKay had established a claim for unjust enrichment. I granted her a remedial monetary award of $40,905.05 for the unjust enrichment, less credit to Mr. Langstaff of $14,400 for his assumption of the parties’ line of credit and for payment of the mortgage on their jointly owned home, for a net payment of $26,505.50.
[5] The sum of $40,905.05 was based on the clear link between Ms. McKay’s contribution to the parties’ accumulation of wealth and the value of the chattels and bank accounts owned by the parties.
[6] Ms. McKay had also claimed that Mr. Langstaff’s pension with CP Rail should be included in the calculation of a remedial award for unjust enrichment. However, I found that there was no evidence to indicate that her contributions, financially and domestically, were linked in any way, directly or indirectly to Mr. Langstaff’s CP Rail Pension. I declined to include the pension in the award for unjust enrichment.
[7] The parties are the joint owners of a home. They agreed on a value for the home of $120,000 and they agreed that Mr. Langstaff will purchase Ms. McKay’s interest for $60,000.
[8] I awarded Ms. McKay spousal support of $1,300 for each of November and December 2013. For the period January 1, 2014, through December 1, 2014, inclusive, I awarded her spousal support of $1,275 per month. Commencing January 1, 2015, I awarded her support of $1,000 per month, indefinitely.
[9] The solicitor for Ms. McKay, Ms. Currie, presents a Bill of Costs for fees of $23,142 and disbursements of $583.95, plus applicable HST. However, in submissions, Ms. Currie stated that she was seeking costs of $15,000. She acknowledges that the amounts set out in the Bill of Costs related to a case conference, a motion, a settlement conference and a trial management conference, totalling $5,220 should not be included in Ms. McKay’s claim for costs. Costs should be decided after each step in the case in accordance with Rule 24(10).
[10] The starting point in setting costs in family law matters is Rule 24(1):
“24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[11] Rule 24(11) sets out the factors which must be considered in awarding costs:
(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 signatures of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[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, 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 the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[13] In C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at para. 40, Rosenberg J. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, but that they have not, however, completely removed the court’s discretion. I note that Rule 24(11)(f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act, there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[14] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[15] In Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
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 party rather than any exact measure of the actual costs of the successful litigant.
[16] While Boucher and Zesta Engineering are not family law cases, I accept that the principles enunciated above are applicable to family law matters.
[17] Ms. McKay served an offer to settle in April 2015.
[18] The offer with respect to property required Mr. Langstaff to make a cash payment of $80,000 and to transfer the sum of $50,000 from his CP Rail pension. Ms. McKay would transfer her interest in the home to Mr. Langstaff.
[19] Pursuant to the order made at trial, Mr. Langstaff is to pay Ms. McKay $60,000 for the house, $26,505.05 as a remedial award for unjust enrichment (net of credits) and prejudgment interest of $,151.20, for a total of $87,656.75. This compares to the $130,000 by way of cash and pension transfer set out in the offer.
[20] With respect to support, the offer required Mr. Langstaff to pay $900 per month, commencing January 1, 2015 until Ms. McKay attained age 65, with credit for payments that Mr. Langstaff had made voluntarily prior to trial. The offer required Mr. Langstaff to designate Ms. McKay as the beneficiary of his policies of life insurance with London Life and CP Rail.
[21] The offer as to support was more favourable to Mr. Langstaff than the order as to support made at trial.
[22] The issues of Ms. McKay’s entitlement to an award for unjust enrichment and to spousal support were important in the context of a 26 year relationship and the parties’ limited financial resources.
[23] The issue of unjust enrichment was not straight forward. I regard it as somewhat complex.
[24] Ms. Currie claims an hourly rate of $290. She states that her current actual hourly rate is $340. Ms. Currie has 29 years of experience, largely in the area of family law and I regard her hourly rate of $290 claimed in this matter to be reasonable. I also regard the hours shown in the Bill of Costs to be reasonable for a case of this nature.
[25] Mr. Langstaff, who is unrepresented, submits that no costs should be awarded. He submits that at trial he was successful in keeping his pension intact. He states that Ms. McKay will have more than enough money, from what she was awarded at trial, to pay for her lawyer.
[26] In my view, Ms. McKay was partially successful at trial as to the property issues and wholly successful as to support. She is entitled to her costs, albeit not equivalent to the amount of costs to which she would have been entitled if she had been wholly successful on her claim for a remedial award for unjust enrichment.
[27] In my opinion, having regard to the factors discussed above, in the context of the facts of this case, it would be fair and reasonable to award Ms. McKay costs of this trial in the amount of $10,000, plus HST, plus disbursements, as shown in the Bill of Costs, of $583.96. Of these costs, $5,000 shall be deemed to be a support order and enforceable as such by the Family Responsibility Office.
Form of Order
[28] Ms. Currie has prepared a draft order. A copy of that draft order, as filed, has been marked by me and placed in the court file.
[29] Ms. McKay requests that Mr. Langstaff designate her as the beneficiary of his policy of life insurance with London Life and the group life policy that he has with his employer. Mr. Langstaff objects to this being included in the order, on the grounds that it was not contained in the order set out in my reasons released August 19, 2015.
[30] Ms. McKay had requested the life insurance designation in her application. In the Interim Separation Agreement between the parties, signed May 14 and 15, 2014, respectively, by the parties, Mr. Langstaff was required to designate Ms. McKay as the sole beneficiary of both policies “… until further Agreement or Order of the Court”. It is not unusual for support payments to be secured by life insurance. It obviously is a benefit to the support recipient, but it also benefits the support payor, whose support obligations in the event of his death would be payable by his estate. The estate could not be closed until the support obligation ceased. In requiring the designation, the order will provide that Mr. Langstaff’s support obligation ends on his death, or the death of Ms. McKay.
[31] The draft order, as filed, shall issue, subject to the following amendments:
(a) Paragraph 4 – The date of October 31, 2015 shall be changed to January 31, 2016;
(b) Paragraph 5 – The paragraph shall begin: “Mr. Langstaff shall pay spousal support to Ms. McKay, during their joint lives, as follows:”;
(c) Paragraph 7 – The paragraph shall read:
“For the purposes of securing the spousal support referred to in paragraph 5 of this order, Mr. Langstaff shall designate Ms. McKay as sole beneficiary of his life insurance benefits with London Life and with his employer. Mr. Langstaff shall forthwith provide proof of the designations. If Mr. Langstaff fails to maintain Ms. McKay as beneficiary of the policies as required herein, his obligation to pay spousal support shall not terminate on his death, as provided for in paragraph 5 of this order, but shall continue and be a first charge against his estate.”
(d) Paragraph 9 – The paragraph shall be amended to reflect the costs order herein.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: November 18, 2015
COURT FILE NO.: FS-14-0015
DATE: 2015-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Diana Robert McKay,
Applicant
- and -
Douglas James Langstaff,
Respondent
DECISION ON COSTS & FORM OF ORDER
Shaw R.S.J.
Released: November 18, 2015
/mls