Hutton v. Hutton, 2015 ONSC 7888

Court File No.: 15D-0008

Date: 2015-12-15

Superior Court of Justice - Ontario

Re: William James Hutton, Applicant.

And:

Cynthia Anne Hutton, Respondent.

Before: Honourable Justice Timothy Ray.

Counsel: Caroline E. Kelly, Counsel, for the Applicant. Virginia G. Ollerhead, Counsel, for the Respondent.

Heard: In writing

Costs Endorsement

[1] The parties filed costs submissions following my endorsements of October 28, 2015, (2015 ONSC 6683) and October 29, 2015 (2015 ONSC 6698). These followed two motions heard October 28, 2015. The first was a motion and cross-motion to strike portions of the pleadings. The second was a motion for interim spousal support. The first motion occupied the morning and the second motion the afternoon. It is this latter motion that is the subject of this costs endorsement.

[2] The applicant was for the most part successful on the pleadings motion. I noted as follows at paragraph 8:

On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society. Pleadings are rarely attacked in family law matters. More care should be taken to assure that the pleadings comply with the rules.[^1]

[3] On the pleadings motion, the applicant having been the successful party, was entitled to his costs which I fixed at $3,800 after hearing submissions and before hearing the second motion. Both parties addressed the interim spousal support motion at length in their written costs submissions.

[4] With respect to the respondent’s interim spousal support motion, the applicant’s position is that each party should bear their own costs on the ground of divided success. His position is that the respondent was unsuccessful in obtaining a retroactive order, that she over reached in her life insurance demands, my interim spousal support order was less favourable than her two offers, and that in any event the respondent’s costs demands are unreasonable. The respondent’s position is that she devoted 68 hours at $350 per hour to the interim spousal support motion, and seeks a costs order in the amount of $15,000. She defends the number of hours spent on the ground that the issue was vitally important to her; and that she was required to conduct extensive research, and prepare factums and books of authorities. She also contends that the applicant behaved unreasonably in his offers and late service of materials. She also claims disbursements of $836.39 but with no breakdown as between legal services, process serving, long distance estimate, and couriers etc.

[5] Rule 24 of the Family Law Rules is a code for dealing with costs in family law matters and requires that the judge decide the costs promptly at each stage of the proceeding. A successful party is presumed entitled to an award of costs unless they are shown to have behaved unreasonably. The amount of the costs to be awarded requires a consideration of the following factors:

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. I note that the Civil Rules were amended to require that proportionality be considered in deciding costs. In family law proceedings it has at least as much relevance as in civil proceedings. I take ‘proportionality’ to be part of ‘other’ and therefore a relevant factor that I am required to consider.

[6] In their submissions, both parties reviewed the chronology of the litigation, the offers, and the conduct of the other counsel. I conclude that the respondent was the successful party but not by much. She failed in many respects but was successful in others.

[7] The issues involved were not complex. The spousal support guidelines made the calculations fairly straight forward. The applicant had been paying spousal support without an order so entitlement was not an issue. The pension calculation is an actuarial calculation. While the parties accused each other of being unreasonable, the only unreasonableness I can see are the costs demands of the respondent. Which brings me to the remaining costs factors: time spent, her hourly rate, and proportionality. Quite frankly, I have no idea why it would have taken 68 hours of time to deal with this interim spousal motion, unless the counsel were new to the bar. But then an hourly rate of $350 would not be justified. Under those circumstances perhaps $100 would be appropriate so the total fee charged to the client would have been $6800. Proportionality requires that the fee charged to the client, and the claim for costs be proportionate to the amounts in issue, and the wherewithal of the parties. Neither of the parties has a lot of money. The respondent acknowledges that she had to borrow money from her parents to pay her legal fees. If this case continues on in this fashion, any financial benefit to the respondent will be completely taken up with the legal costs; and the applicant will be bankrupt. That is by definition offensive to the principle of proportionality.

[8] I don’t accept the respondent’s claim for disbursements without further explanation. Payment for legal services as a disbursement without explanation is not assessable. The absence of any breakdown makes it impossible for me to assess the respondent’s disbursements.

[9] The respondent is entitled to her costs of the interim spousal support motion fixed at $4,500 inclusive of disbursements.

Honourable Justice Timothy Ray

Date: December 15, 2015

[^1]: Hutton v Hutton, 2015 ONSC 6683.