Court File and Parties

CITATION: Macan v. Freure, 2016 ONSC 1437

COURT FILE NO.: FC-12-539-01

DATE: 2016-02-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MIRA MACAN, Applicant

AND: DOUGLAS A. FREURE, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: The Applicant Self-Represented The Respondent Self-Represented Judith Turner for the Office of the Children’s Lawyer

HEARD: By written submissions

COSTS ENDORSEMENT

Introduction

[1] On October 29, 2015 I heard an argued motion regarding the sale of a cottage property. That cottage property is in the name of the Applicant and moving party, Mira Macan. The Respondent Douglas Freure objected to the sale, relying on the fact that he had an interest in the property through efforts expended by him on the cottage, as well as the cottage having a unique value to him and his daughter.

[2] Prior to hearing the motion, Mr. Freure submitted that the property was held in trust for the parties’ daughter, Rebecca Freure who lives with Ms. Macan. As a result of this submission, I ordered that the Office of the Children’s Lawyer be notified of this motion. After several adjournments the Children’s Lawyer appointed counsel to represent Rebecca Freure regarding her property interests.[^1] That lawyer was Judith Turner who supported the position of the Applicant Mira Macan.

[3] Ms. Macan was ultimately successful on the motion. The property was ordered to be sold with the net proceeds to be paid into court. The proceeds of the cottage property are net of an execution registered against Mira Macan to be paid from the proceeds of sale. That execution represents the portion of the purchase price of the cottage which should have been secured by way of a mortgage back which was never registered when the property was purchased.

[4] Ms. Macan requests costs to be paid by Mr. Freure. She does so as the successful party.

[5] Ms. Turner on behalf of the Office of Children’s Lawyer also requests costs. She effectively asks that costs be paid from the net proceeds of the cottage property which means that costs would payable by one of the potential owners of the cottage property. Those potential owners are Mr. Freure, who claims a resulting trust interest in the property, Rebecca Freure who the OCL represents and for whom the property is held in trust and Ms. Macan who is the titled holder of the property.

[6] Mr. Freure has filed no costs submissions either in favour of costs payable to him or in opposition to the costs submissions filed by Ms. Macan and the counsel for the OCL.

Costs of Mira Macan

[7] Ms. Macan requests costs of $3,000 plus disbursements of $569.82. She says that she is entitled to costs for preparing materials, filing materials and attending at the motions and the various adjournments in this matter.

[8] Of the disbursements claimed by Ms. Macan, $480 consists of fuel expenses for driving back and forth to court in Barrie. A further $89.82 is the cost of mailings which presumably are the costs of serving documents in respect of this motion.

[9] Ms. Macan did not file an offer to settle with her materials and I therefore presume that she did not make a formal offer to settle the motion.

[10] Under Rule 24(1) of the Family Law Rules,[^2] costs follow the event and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct by a party under Rule 24(4). If success is divided I may apportion costs as appropriate: see Rule 24(6). Under Rule 24(11) in fixing the amount of costs I am to take into account the “importance, complexity or difficulty of the issues” as well as the “time properly spent on the case including conversations between the lawyers and party or witnesses, drafting documents and correspondence, attempts to settle, preparation for a hearing, argument and preparation and signature of the order.”

[11] Self-represented litigants are entitled to costs in proceedings “calculated on the same basis as those of the litigant who retains counsel”. The basis for assessment of costs of a self-represented person is the “loss of time through their involvement in the legal process.” The allowance for time should be “moderate” or “reasonable” but should not be for anything more than the “time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation”: Fong v. Chan, 1999 CanLII 2052 (ON CA), [1999] O.J. No. 4600 (C.A.) at para. 26. The claim by a self-represented litigant, in other words, would be for work “otherwise done by counsel or that she may have been charged for had she been represented”: Jordan v. Stewart, 2013 ONSC 5037 at para. 44.

[12] Ms. Macan was successful on the motion. They cottage property was ordered to be sold. She is therefore entitled to her costs of the motion payable by Mr. Freure.

[13] Ms. Macan requests payment for 150 hours of time that she has spent working on this motion. She says she spent 80 hours preparing materials, 10 hours filing materials and 60 hours in court. She claims $50 per hour for preparation of materials but only $20 per hour for the filing of materials and attendance at court.

[14] It is difficult for me to determine what portion of her time claimed would be time spent by a lawyer and what portion of the work claimed would be time that she would have spent as a client in reviewing, signing materials and attendances in court. It is also difficult for rationalize the hourly rate that she is charging for the various activities set out in Ms. Macan’s costs submissions. I do not understand the difference between the hourly rate for preparation of materials as opposed to the lower hourly rate for attendance in court.

[15] The total amount of time claimed is $3,000. Ms. Macan did not serve an offer to settle; were she represented by counsel she would have therefore been entitled only to partial recovery costs. As well, had a lawyer claimed 80 hours for preparation of the materials that were filed I would have disallowed a good portion of those hours as the amount of hours is excessive considering the materials reviewed by me for the motion. There was a Notice of Motion and a number of affidavits and I would probably have allowed only 20 hours of time or so for preparation of materials at the maximum.

[16] There were numerous adjournments in this matter. One attendance was in order to serve the Children’s Lawyer due to the trust claim of Rebecca, something not raised by the Applicant although perhaps it should have been raised by her considering it was her statement at an examination which confirmed that the property was held in trust for Rebecca. One other adjournment was at the request of the Office of Children’s Lawyer so that they could determine whether they would become involved. That adjournment request was objected to by Ms. Macan. Ms. Macan is entitled to her costs of the various appearances necessary to resolve the motion.

[17] I allow the disbursements claimed by Ms. Macan for gas and for mailings.

[18] Taking the disbursements into account I allow Ms. Macan a total amount of costs in the amount of $1,600 inclusive of disbursements. Those costs are payable by Mr. Freure within 60 days. If not paid within that period of time, they are payable from any share of the net proceeds of the cottage property found to be owing to Mr. Freure.

Costs of the Children’s Lawyer

[19] Counsel for the OCL also requests costs. Ms. Turner asks for $6,405 for fees plus HST of $832.65. Disbursements are $66 plus $4.55 for HST. The total amount claimed by counsel for the Office of the Children’s Lawyer on a full indemnity basis is $7,308.20.

[20] No offer to settle was served by the Office of Children’s Lawyer on Mr. Freure.

[21] OCL counsel supported Ms. Macan’s position that the cottage property be sold and that the money be paid into trust. Counsel was helpful on the motion in identifying and clarifying the issues and as well in assisting in argument. Certainly the fact that counsel for Rebecca wished the property to be sold made a substantial difference to the position of Mr. Freure who argued that the property should be preserved for Rebecca in the future.

[22] There is jurisdiction for awarding costs to the Office of Children’s Lawyer: see s. 89(4) of the Courts of Justice Act.[^3] The OCL was, along with Ms. Macan, successful in this motion. As there is a presumption that the successful party is entitled to costs and as Mr. Freure has filed no submissions in opposition to the claim for costs by the OCL, there shall be an award of costs for the motion in favour of the Office of the Children’s Lawyer.

[23] This leaves two issues outstanding:

• How should the costs be paid or secured?

• What is the amount of costs to be assessed?

1. How should the costs be paid or secured?

[24] Ms. Turner on behalf of the OCL suggests that the costs be payable “out of the sales proceeds of the [cottage] property”. Ms. Macan in her reply submissions takes exception to this. She suggests that costs be awarded against Douglas Freure only and should only be taken out of his share of the net proceeds of the cottage property.

[25] It appears to be the position of Ms. Turner that the costs be paid from the sale proceeds of the cottage property irrespective of who is found to be an owner of the property. As noted in my Endorsement on the motion there are three competing claims for the cottage property and perhaps four. These are the claims of Mr. Freure under the doctrine of resulting trust, the claim of Ms. Macan who is the titled owner of the property and lastly, the trust claims of Rebecca Freure and Emily Freure, the two daughters of Mr. Freure.

[26] There are three purposes of an award of costs as set out in Jordan v. Stewart, at para. 98, as well as Serra v. Serra, 2009 ONCA 395 (C.A.) which are as follows:

1. To partially indemnify successful litigants for the costs of litigation;
2. To encourage settlement; and
3. To discourage and sanction inappropriate behaviour by litigants.

[27] To make a general award of costs from the net sale proceeds of the home may mean that Ms. Macan and Rebecca Freure may end up paying part or all of the costs of the OCL.

[28] Both Ms. Macan and Rebecca Freure were successful in this motion. It would make no sense to award costs to Ms. Macan as above and then to order costs against her as this would not serve to indemnify Ms. Macan as a successful litigant. As well it would not make sense for Rebecca Freure to bear the costs award out of her share of the net proceeds as she is a successful litigant and the purpose of costs would be to indemnify her legal costs borne through the OCL.

[29] If the purpose of this costs award is to encourage settlement, this again was not an issue between Ms. Macan and the Office of the Children’s Lawyer who were on the same side of the litigation or of the motion. There were also no settlement issues between the Office of the Children’s Lawyer and their young client Rebecca Freure.

[30] Thirdly, the purpose of costs is to discourage and sanction inappropriate behaviour by litigants. The only inappropriate behaviour in this situation was that of Mr. Freure who took a position that he wished to avoid a sale of the cottage property for the benefit of his daughter while never having allowed his daughter any recent opportunity to use that cottage property. Mr. Freure also had not been paying the costs of the cottage property. His behaviour was inappropriate. Ms. Macan’s behaviour was not. As such she should also not be forced to bear the costs of this litigation.

[31] Accordingly, the costs of the Office of the Children’s Lawyer in this matter are awarded against Mr. Freure only. They shall be paid only from his share, if any, of the net proceeds of the cottage property.

2. What is the appropriate quantum of costs in this matter?

[32] As stated, the Office of the Children’s Lawyer requests costs in the amount of $7,308.20 inclusive of disbursements and HST.

[33] The hourly rate set out in the costs submissions, being $350 per hour, is an appropriate hourly rate for both counsel involved in this matter. Total hours expended were 18.3 hours; again this was a reasonable amount of time for counsel to have spent in this matter considering that no materials were prepared by the Office of Children’s Lawyer.

[34] Costs should be assessed on a partial recovery basis as no offers to settle were exchanged and there is no allegation of bad faith conduct or other factors which would lead to a full recovery award of costs other than the fact that counsel have reduced their hourly rates.

[35] The OCL shall have its costs in the amount of $4,400 inclusive of disbursements of HST payable by Douglas Freure within 60 days. If not paid within 60 days, those costs may be recovered from Mr. Freure’s share of the sale proceeds of the cottage property.

[36] The order shall therefore read as follows respecting the costs award in favour of the OCL:

1. This court orders that the costs of the Office of the Children’s Lawyer be fixed in the amount of $4,400. Such costs are payable within 60 days and may be paid to the solicitor for the Office of the Children’s Lawyer, Stewart, Esten LLP. If they are not paid within 60 days, they may be paid out of Douglas Freure’s share of the sale proceeds, if any, of the real property registered in the name of Mira Macan and legally described as PIN 52185-0331 being Pcl 9409 SEC SS; PT Island B704 AKA McLaren Island in the Georgian Bay in front TWP of Cowper being summer resort location D.A. 38; The Archipelago, District of Parry Sound.

McDERMOT J.

Date: February 26, 2016

[^1]: The Office of the Children’s Lawyer had already provided representation regarding the custody and access issues placed by the parties before the court in these family law proceedings. [^2]: O. Reg. 144/99 [^3]: R.S.O. 1990, c. C.43