Merima Ceho v. Milan Ceho and Zorica Ceho, 2016 ONSC 1786

Ceho v. Ceho, 2016 ONSC 1786

CITATION: Ceho v. Ceho, 2016 ONSC 1786

COURT FILE NO.: FS-13-1361-00

DATE: 2016-03-14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MERIMA CEHO

Marianne Guirguis, for the Applicant

Applicant

• and -

MILAN CEHO and ZORICA CEHO

Shannon Anderson, for the Respondent

Respondents

HEARD: March 11, 2015, at Brampton, Ontario

Price J.

Costs Endorsement

NATURE OF PROCEEDING

1When the applicant, Merima Ceho, recovered from the drug addiction and post-traumatic stress disorder that had impaired her ability to care for her two children and had led to a 2013 court order granting temporary custody of the children to the respondent, Milan Ceho, Ms. Ceho applied for a change in the order to have the children returned to her. The Children’s Aid Society and the Office of the Children’s Lawyer, which in 2013 had recommended that the children be in the care of their father, now recommended that the children be returned to Ms. Ceho, because she had substantially recovered from her drug addiction, while Mr. Ceho was still addicted to drugs and was unable to co-parent effectively with Ms. Ceho.

2Mr. Ceho opposed Ms. Ceho motion to change the 2013 order on the ground that she had failed to show that a material change of circumstances had occurred since that order was made, and on the ground that it was not in the children’s best interests to change the status quo that had existed since 2013. In August 2014, on the eve of the hearing, Mr. Ceho’s mother brought her own application for custody of the children, and motion for temporary custody, which led to an adjournment of the hearing to March 2015, when the two motions were heard together.

3Upon hearing the motions, the court held that:

a) Ms. Ceho was not required to prove a material change of circumstances, since the 2013 order was made on a temporary and without prejudice basis, and in contemplation of the Children’s Lawyer’s clinical investigation, which had since been completed.

b) In any event, Ms. Ceho’s recovery from her drug addiction, the completion of the Children’s Lawyer’s investigation, and the support that the Children’s Aid Society and the Children’s Lawyer now gave to a return of the children to Ms. Ceho’s care were material changes in circumstances.

c) It was in the best interests of the children that they be returned to Ms. Ceho’s custody.

4The parties were unable to agree on the costs of the motion. This endorsement will address that issue.

FACTS RELEVANT TO COSTS

5On August 28, 2013, Justice Mossip made an order requesting the Office of the Children’s Lawyer to investigate the needs of the Ceho children pursuant to s. 112 of the Courts of Justice Act. She ordered, in the meantime, on a temporary and without prejudice basis, that the children reside primarily with Mr. Ceho, under the supervision of his parents.

6The Office of the Children’s Lawyer assigned its Clinical Investigator, Eileen Spraggett, M.S.W., R.S.W., to investigate. Ms. Spraggett completed her investigation and met with Mr. and Ms. Ceho on February 20, 2014, to review her observations and recommendations. She later issued a report dated April 16, 2014. She anticipated, at that time, that Ms. Ceho’s recovery would be complete by April 2015, at which time she expected that Aleksandar and Juliana would be returned to their mother’s care, but she recommended that, in the meantime, they remain in the care of their father and paternal grandparents, in order to give them a further period of stability.

7Neither party accepted the OCL recommendations. On June 4, 2014, Justice Van Melle conducted a case conference and ordered that the motion to determine the primary residence of the children be heard later that month. On June 23, 2014, Ms. Ceho made a formal motion, for hearing August 13, 2014, for an interim order granting her sole custody of the children or, in the alternative, for joint custody, and for the primary residence of the children to be with her.

8Justice Bielby conducted a settlement conference on December 12, 2014, and March 3, 2015. By that time, Mr. Ceho’s mother had brought her own motion, which Justice Bielby ordered be joined with Ms. Ceho’s motion, so that the two could be heard together. The two motions were heard on March 11, 2015. By then, Ms. Spraggett had issued an up-date of her report on December 23, 2014, in which she noted that Ms. Ceho had given birth to a daughter, Althea, on July 28, 2014, and had the support of her long term partner, Jason Goetz, who was the father of her child. She reported that Ms. Ceho had not been on any medication since December 31, 2013, and continued under the care of her psychiatrist, Dr. Johnson, who reported that she was stable and ready to resume full-time care of Aleksandar and Juliana. Dr. Johnson described Ms. Ceho as an exceptionally bright person and an excellent parent, who was emotionally attuned to her children’s needs. Ms. Spraggett consulted with the family’s Peel CAS worker, Sheila Amadume, who advised that she did not have any child protection concerns with Ms. Ceho.

9While Mr. Ceho had tested negative in two recent urine samples since the disclosure meeting on December 3, 2014, he still was not taking personal responsibility for his treatment, and there was concern that he continued to deny and minimize his substance abuse. Ms. Spraggett noted that there had not been any progress made in the communication between Mr. and Ms. Ceho, and that Mr. Ceho’s mother continued to perceive Ms. Ceho in a negative light. She concluded that the conflict between Mr. and Ms. Ceho would not allow them to exercise joint custody effectively, and she recommended that Ms. Ceho have sole custody and that the children reside primarily with her.

10Mr. Ceho filed a formal dispute to Ms. Spraggett’s December 2014 report on January 30, 2015, with a critique by Gregory Koval, M.S.W., based on his review of the report. The parties attended a hearing on March 11, 2015, where Mr. Ceho asked that the motions be adjourned to the trial of the application, when his lawyer would have the opportunity to cross-examine Ms. Ceho and Ms. Spraggett. Ms. Ceho opposed the adjournment for fear that, if the children continued residing for another year with their paternal grandparents, who were hostile to her, the grandparents would alienate the children from her.

11The court noted that a trial would not be held until January or May 2016, with the result that the final determination of the issues of custody and primary residence would not be made until after a new school year began in September 2016. If the interim order was not varied, the children were likely to remain with Mr. Ceho and his parents for an additional year, as Ms. Ceho did not want to disrupt their schooling.

12In the result, the court found that it was in the best interests of the children that they be returned to Ms. Ceho sooner rather than later, and changed the interim custody order accordingly. The parties were unable to agree on costs and have submitted their written argument on that issue. The court has reviewed their arguments, and is now able to make its costs order.

ANALYSIS AND LAW

13Indemnification of the successful party to a proceeding is the paramount, but not the only objective to be served by a costs order. Other objectives include encouraging settlement, discouraging unreasonable conduct and unnecessary litigation,¹ and preserving access to justice.²

14An appropriate costs order balances two conflicting principles:

1. A blameless litigant who is successful in a proceeding should not be required to bear the costs of having his or her rights tested.

2. Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all of the opposing party’s costs.

15The ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.³

The Discretion to be Exercised

16The determination as to which party, if any, should compensate the other for their costs, and as to the amount of such costs, is “within the court’s discretion.”⁴ The court must exercise its discretion with due regard to the objectives of costs awards, and to Rule 24(11) of the Family Law Rules, which sets out the factors relevant to how the objectives are best attained in a particular case.

Objectives to be Served

17Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs.⁵ In Johanns v. Fulford, in 2010, it was held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.⁶ Ms. Ceho was substantially successful in her motion, having secured an order for temporary sole custody of the children and primary residence of the children with her.

Factors to be Considered

18Rule 24(11) of the Family Law Rules lists the factors the court should consider when quantifying costs:

24. (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.⁷

Importance, Complexity, and Difficulty

19The motion was of great importance to the parties. The longer the status quo arising from the 2013 order prevailed, with Mr. Ceho having de facto custody of the children, the greater the risk, from Ms. Ceho’s point of view, that he and his parents would undermine the children’s relationship with her.

20The motion was more complex than a conventional motion for custody and access owing to certain issues that increased the costs beyond the normal range. These included the following:

a) Whether Ms. Ceho was required to prove a material change of circumstances to change a temporary and without prejudice order;

b) Whether a material change of circumstances had occurred;

c) Whether the court should rely on a Children’s Lawyer’s report before there had been cross-examination on the report at trial;

d) The effect, if any, of each of the parties’ drug addiction on their ability to care for the children;

e) The relative impact on the children of maintaining the status quo that had prevailed since the 2013 order was made, and of restoring the previous status quo, and whether it was in their best interests to change schools during a school semester.

Reasonableness of Each Party’s Behaviour – Scale of Costs

21Rule 24(4) of the Family Law Rules gives explicit recognition of the principle that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. It provides:

24.(4) Despite sub-rule (1) [which provides that a successful party is presumed to be entitled to the costs of a motion], 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. [Emphasis added]

22Ms. Ceho seeks payment of her costs by Mr. Ceho on a full recovery scale on the ground that he acted in bad faith. In Nairn v. Lukowski, in 2002, and in Piskor v. Piskor, in 2004, Blishen J. adopted the definitions of bad faith that the court formulated in Erickson v. Erickson,⁸ in 2000, and Hunt v. Hunt, in 2001.⁹ In those cases, it was held that bad faith could consist of conduct intended to deceive or mislead,¹⁰ or of an intentional breach of an agreement or court order in order to achieve an ulterior motive.

23These formulations of bad faith are consistent with the definition set out in Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990):

Generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. Bad faith is not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.¹¹ [Emphasis added]

24Justice Perkins gave a more extensive explanation of bad faith in S.(C.) v. S.(C.) in 2007:

…The essence of bad faith is the representation that one’s actions are directed toward a particular goal while one’s secret, actual goal is something else, something that is harmful to other persons affected or at least something they will not willingly have supported or tolerated if they had known. However, not all bad faith involves an intent to deceive. It is rare, but not unknown in family cases, for bad faith to be overt – an action carried out with an intent to inflict harm on another person or a person affected by the case without an attempt to conceal the intent.

In order to come within the meaning of bad faith in Rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.¹² {Emphasis added]

25I do not find that Mr. Ceho acted in bad faith in opposing Ms. Ceho’s motion, or that his mother acted in bad faith in making her cross-motion. Their positions, although unreasonable, were based on the negative regard they have for Ms. Ceho and their genuine belief that they were better able than she to care for the children. Not every instance of unreasonable conduct attracts an order that costs be paid on a higher than partial indemnity scale. Substantial indemnity costs, like their predecessor, solicitor and client costs, are exceptional. Mark M. Orkin, in The Law of Costs,¹³ cites the Supreme Court of Canada in Young v. Young, in this regard: “Solicitor and client costs are generally awarded only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.”

26In Empire Life Insurance Co. v. Krystal Holdings Inc., in 2009, Archibald J. stated: “Substantial indemnity costs are an exceptional award, saved for extenuating circumstances such as situations where there has been egregious conduct … or where a motion has been brought unreasonably”¹⁴ The same principle can apply where a motion is unreasonably opposed, but the court must be careful not to characterize every lack of success in a motion, or in the opposition to a motion, as evidence bad faith to justify an award of costs on a higher scale for a lack of success.

27A finding of bad faith is not a condition precedent to full recovery of costs by the other side under the FLR.¹⁵ A finding that the motion should not have been brought, or should not have been opposed, is sufficient to attract costs on this higher scale. The determination of costs in the present case is governed by the FLR, not by the Rules of Civil Procedure.¹⁶ Under the FLR, the traditional assumption that there are only two levels of costs (“party-and-party”/“solicitor-and-client”; or “partial indemnity”/“substantial indemnity”), no longer applies. The court is simply required to consider the range between a nominal amount of costs and full recovery.¹⁷In a family law case, the court need not find “special circumstances” before ordering costs on a substantial or full indemnity scale.¹⁸ Within the spectrum of costs orders, costs on a substantial or full indemnity scale are not justified in the present case. Mr. Ceho’s opposition to Ms. Ceho’s motion, and his mother’s own motion, were intended to maintain their care of the children. It did not reflect a conscious wrongdoing for a dishonest purpose, furtive design, moral obliquity, or ill will.

28I have taken into account the failure of Mr. Ceho and his mother to accept Ms. Ceho’s Offers to Settle dated August 7 and December 5, 2014, and March 10, 2015. It is not possible to make a precise comparison of those Offers with the outcome of the motions, because the wording of the later Offers are unclear. The Offers provide for the following weekly access:

a) Offer dated August 7, 2014: Mr. Ceho shall have access to the children pursuant to the following schedule:

i) Every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

ii) Every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m.

iii) Such other access as the parties may agree upon.

b) Offers dated December 5, 2014, and March 10, 2015: The respondent, Milan Ceho and the co-respondent, Zorica Ceho, shall have access to the children… pursuant to the following schedule:

i) In odd-numbered months, [they] shall have access for two consecutive weekends from Friday at 5:00 p.m. when he and/or she shall pick up the children in Guelph, until Sunday at 7:00 p.m., when they shall return the children to Guelph;

ii) The respondent shall then skip a weekend so that the Applicant can spend one weekend with the children;

iii) In even numbered months, the respondent and co-respondent shall have access to the children as follows:

(a) Every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.;

(b) Every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m.;

(c) Such other access as the parties may agree upon.

29It is unclear whether the later Offers should be intended to mean that after skipping a weekend, the respondents may exercise another two consecutive weekends, or whether they must wait (apart from their weekday access) until the next month to resume their weekend access.

30The Offers represents a genuine effort to compromise, and to recognize Mr. Ceho’s right to ongoing access to the children, and had Mr. Ceho and his mother made a reasonable counter-offer, they might have achieved an outcome that was as favourable to them as the one imposed by the court, but at a substantially lower cost. Instead, Mr. Ceho made an Offer on July 17, 2014, that sought simply to continue the primary residence of the children with him and his parents and to defer the determination of custody until the trial of the application.

31The order that was made granted substantially greater access to Mr. Ceho than he would have secured by accepting any of Ms. Ceho’s three offers. It grants Mr. Ceho access for 150 hours each month, consisting of the first two, and the last, weekends of each month, from 5 p.m. Friday to 7 p.m. Sunday (50 hours per week x 3 weeks = 150 hours per month). The order also made provision for holiday and summer access.

32If Ms. Ceho’s last two Offers are interpreted to mean that Mr. Ceho and his parents would exercise access on only two consecutive weekends per month and two weekdays per week, acceptance of them would have resulted in Mr. Ceho having access, at best (that is, in even-numbered months) for only 112 hours each month, consisting of two weekends per month, from 6:00 p.m. Friday to 6:00 p.m. Sunday, (48 hours x 2 = 96 hours per month) and every Tuesday and Thursday from 4 p.m. to 8:00 p.m., (4 hours x 4 weeks, for an additional 16 hours). The order gave Mr. Ceho access for 33.9% more time than that. The Offers, interpreted as providing access on alternate weekends or two consecutive weekends per month, plus two weeknights per week, would have given Mr. Ceho access for only 15.5% of the children’s time, substantially less than the 35% that the Court of Appeal held was minimal, even for a father who was alcoholic, controlling, and demeaning of the mother, in B.V. v. P.V., in 2012.¹⁹ Although the Offer added “further access as the parties might agree upon”, it did not set out specific options for such greater access, from which Mr. Ceho could choose.

33The order requires Mr. Ceho to attend treatment for addiction to address concerns of substance abuse problems. It also requires Ms. Ceho to continue treatment by Dr. Anita Johnson. Acceptance of Ms. Ceho’s Offer would have required Mr. Ceho to submit to random supervised urine drug testing by his family doctor, and to refrain from consuming any alcohol (or illegal drugs) for 24 hours before exercising access.

34Mr. Ceho served his own Offer to Settle on July 17, 2014, in which he sought continued primary residence of the children with him and his parents and an adjournment of the issue of custody to the trial of the application.

35Mr. Ceho’s and his mother’s failure to accept Ms. Ceho’s Offers, and their failure to make a reasonable counter-offer, and the positions they took in relation to the motions, increased Ms. Ceho’s legal fees by prolonging and complicating her motion. The long motion originally scheduled to be heard August 13, 2014, had to be adjourned when Mr. Ceho’s mother, who had known of Ms. Ceho’s motion since March 27, 2013, retained counsel two weeks before the hearing date and attempted to serve and file an application, motion, and factum, one week before the hearing. The judge who presided on August 13, 2014, was in the best position to determine whether Mr. Ceho’s grandmother should have been ordered to pay the costs of that day, on the basis that she caused them to be wasted. I am unable to find, however, that the respondents’ conduct, in opposing Ms. Ceho’s motion or making a motion of their own, or their refusal to accept Ms. Ceho’s Offers, was so unreasonable, or their analysis of the issues so flawed, as to warrant a sanction by imposing costs on a higher scale.

36For the foregoing reasons, Ms. Ceho will be awarded her costs on a partial indemnity scale.

Lawyer’s rates

37Ms. Ceho’s lawyer, Marianne Guirguis, was called to the Bar in 2011 and had practiced law for 4 years when she argued this motion. In determining the appropriate hourly rates to be assigned to Ms. Guirguis, the court follows the approach taken by Aitkin J. in Geographic Resources.²⁰ That is, the starting point is the successor of the Costs Grid, namely, the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan editions of the Rules, sets out maximum partial indemnity hourly rates for counsel of various levels of experience.

38The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate. The court adjusts the hourly rate, 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 57.01(1). 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.

39The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $225 for lawyers of less than 10 years’ experience.²¹ The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases. Having regard to Ms. Guirguis’ 4 years’ experience and the complexity of the motion, she was entitled to claim a maximum $185 per hour in 2005.

40The Costs Bulletin, published in 2005, is now dated. Aitkin J. considered adjusting the Costs Subcommittee’s hourly rates for inflation, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group,²² but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates. Normally, however, it is appropriate to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005.

[41] Based on the Bank of Canada Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2015 equivalent of the rate of $185 in 2005 is $218.38.

42Although Ms. Guirguis provided legal services to Ms. Ceho on a Legal Aid Certificate, this does not affect the rate which she is entitled to claim for the services Ms. Guirguis provided. The Legal Aid Services Act provides:

46(1) The costs awarded in any other order made in favour of an individual who has received legal aid services is recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.²³

43In Nairn v. Lukowski, in 2002, the applicant received services on a Legal Aid Certificate, and the Family Court stated, “the fact that she was on Legal Aid does not limit costs recoverable to the amount payable to counsel pursuant to the Legal Aid rates…” In that case, the court awarded costs at an hourly rate of $200, an amount in excess of the Legal Aid rate. Justice Wein reviewed the jurisprudence and came to a similar conclusion in Ramcharitar v. Ramcharitar, in 2002. Justice Wein stated:

[T]here is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rate would be accordingly reduced.²⁴

44The court has taken a similar approach to fees charged under a pre-paid legal services agreement, such as are administered by C.A.W. and Unifor. I adopt the reasoning in those cases, and particularly the decision of this court in Friday v. Friday, in 2013, in which the court has held that such agreements should not be construed as setting an upper limit on costs otherwise payable to a successful party.²⁵

45The Costs Bulletin entitled a lawyer of Ms. Guirguis’ experience in 2005 to claim a maximum hourly rate of $185 on a partial indemnity scale. That rate translates to $218.38 in 2015, after adjusting for inflation. I round this rate down to $215 per hour.

46The respondents dispute Ms. Ceho’s right to claim her costs based on an hourly rate exceeding the Legal Aid rate but offer no authority in support of their position.

Time Properly Spent on the Case

47Rule 24(11)(d) of the FLR directs me to consider “the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order.”

48Ms. Guirguis spent 81 hours on the motions. Of this time, she spent:

a) 5 hours in meetings, teleconferences, and e-mail with the client and others;

b) 7.5 hours preparing her client’s Notice of motion and supporting affidavits;

c) 2.5 hours reviewing the respondents’ motion material;

d) 2 hours preparing her motion seeking an order for questioning;

e) 5 hours reviewing the law and drafting her factum;

f) 3 hours preparing and attending at the initial motion date;

g) 4 hours preparing her client’s supplementary affidavit;

h) 3 hours in further correspondence;

i) 4 hours preparing for questioning of the parties and 20 hours in attendances for the questioning on February 27, March 2, and March 4, 2015;

j) 6 hours in further research and preparing a supplementary factum;

k) 6 hours reviewing the respondents’ 93 page supplementary affidavit and supplementary factum and book of authorities, and 600 pages of transcript material, and preparing her submissions for the final hearing of the motions.

l) 2 hours preparing her clients’ initial Offer to Settle and discussing it with opposing counsel.

49While Mr. Ceho disputes the reasonableness of the time that Ms. Guirguis spent, he has not delivered a Costs Outline from his own lawyer, setting out the time she spent. Having regard to the respondents’ 93 page supplementary affidavit, the 20 hours spent at questioning, the need to review 600 pages of transcript and prepare a factum and Book of Authorities, and the time spent at court on August 13, 2014, and March 11, 2015, it would be it would be surprising if she spent substantially less time.

50This court has held, on several occasions, that when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.” In Risorto v. State Farm Mutual Automobile Insurance Co., (2003), 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. ²⁶ [Emphasis added.]

51Ms. Guirguis was asked what her hourly rate was and replied that it was $215 on a partial indemnity scale.

52In the absence of information from Mr. Ceho as to the time spent by his own lawyer, I find that the time claimed by Ms. Guirguis was reasonable.

Disbursements

53Ms. Ceho claims for disbursements consisting of process server expenses, tabs and binding, photocopying, faxes and transcripts. Of the total of $3,112.95, the great majority ($2,693.20) was for transcripts. The respondents do not take issue with the disbursements and I find them to be reasonable.

Other Relevant Matters

54The court must examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, the court must take into account the reasonable expectation of the parties concerning the amount of costs.²⁷

55Awards of costs in motions to change custody or access vary greatly, depending on their factual complexity, the extent of the change sought, and the reasonableness of the parties’ conduct. I have considered the following costs awards made in such cases:

(a) In Winton v. Lofranco, (2005), Himel J. awarded costs of $50,000 for fees and $11,000 for disbursements in a motion to change custody and cross-motion for support involving a three day hearing.²⁸

(b) In Mooney v. Fast, (2013), Curtis J. awarded the mother costs of $8,000 in a motion to change a consent order that had awarded her sole custody of the parties’ six-year-old child with reasonable access to the father. In her motion, the mother sought supervised access for the father (and other claims), and the father sought joint custody (and other claims).²⁹

(c) In Gallacher v. Gallacher, (2005), Wolder J. awarded the father his costs in the amount of $15,810.36 following a two day trial of the mother’s motion to change an order that had granted him sole custody of the children.³⁰

(d) In Macdonald v. Magel, (2008), Olah J. awarded costs of $12,500 to a mother in a successful motion to change her access from supervised to unsupervised access.³¹

(e) In A.B. v. C.D., (2011), Mossip J. awarded the mother her costs of $50,000 after a one day hearing in which she successfully resisted the father’s motion to change a custody and access order by granting him access and obtained an order that the father have no access.³²

(f) In Hall v. He, (2012), Linhares de Sousa J. awarded the mother her costs in the amount of $20,000 when she successfully resisted the father’s motion to change an order that provided that the parties’ child be principally resident with the mother, and to require that the child live with him while attending school.³³

(g) In Pang v. Chin Pang, (2014), this court ordered the wife to pay costs, on a full recovery basis, in the amount of $29,249.30, in a successful motion by the husband to change a final order for custody and access.³⁴

(h) In Durkin v Cunningham, (2015), this court awarded the husband $30,000 on a partial indemnity scale, inclusive of fees, HST and disbursements, in his successful motion to vary an order for custody and access.³⁵

56The costs ordered to be paid in such cases, involving motions to change orders for custody and access, should have informed Mr. Ceho’s reasonable expectation of the costs he might be required to pay if unsuccessful.

57At the commencement of the hearing, the court asked Ms. Ceho’s counsel what her costs to that point were and she replied between $5,000 and 10,000 in fees, and when asked for an amount within that range, estimated $7,000, exclusive of disbursements. The respondents and their counsel should reasonably have interpreted that range as a reflection of her retainer on a Legal Aid Certificate. As noted above, Ms. Ceho’s lawyer stated that her hourly rate was $215 on partial indemnity scale, which the rate that that the court has arrived at for the purpose of determining her entitlement to costs.

58The respondents submit that they are financially unable to pay costs in the amount claimed by Ms. Ceho. They argue that they do not qualify for legal aid but that if they are required to pay Ms. Ceho’s costs in the amount claimed, it may render them unable to continue to be represented by counsel in the litigation. They have not offered evidence to support a conclusion that the costs would impose a financial hardship on them. Mr. Ceho’s counsel advised the court at the beginning of the hearing that her client earned approximately $50,000 per year.

59Mr. Ceho’s counsel, Ms. Anderson, estimated at the beginning of the hearing that Mr. Ceho’s own costs to that point were $30,000, although he had not yet paid that amount in full, and had an account receivable of close to $15,000 with Ms. Anderson’s law firm at that time. The court advised Ms. Anderson that Mr. Ceho should expect to pay approximately the same amount in costs to Ms. Ceho if he was unsuccessful in the motions. His lawyer replied that he would not expect to pay that much, because Ms. Ceho had retained her lawyer on a Legal Aid Certificate.

60It is the responsibility of counsel to advise their respective clients of the fees that the other party was entitled to claim pursuant to the Costs Bulletin, adjusted for inflation, and the jurisprudence referred to above, and of the potential consequences of an adverse result before embarking on the course that will expose them to those consequences. I must assume that the respondents received the appropriate advice from their counsel as to the risks they faced, and decided to proceed in spite of them, rejecting Ms. Ceho’s Offers to Settle, without seeking clarification of them, and failing to make counter-offers on terms that could be expected to bring the litigation to an end.

61In all the circumstances, I find that the costs claimed by Ms. Ceho are proportionate to the interests at stake in these motions and to the amount of Mr. Ceho’s own costs, and to the costs awarded for similar motions in other cases.

Conclusion and Order

62For the foregoing reasons, it is ordered that:

1. Milan Ceho and Zorica Ceho shall, within 60 days, pay to Ms. Ceho her costs of the motions in the amount of $23,196.58, consisting of the following:

(a) Total fees: $17,415.00

(b) Taxable Disbursements: $3,112.95

(c) H.S.T.: $2,668.63

Price J.

Footnotes

1. 1Fellowes, McNeil v. Kansa General International Insurance Co. 1997 12208 (ON SC), 1997 12208, 37 O.R. (3d) 464 (ON S.C.), para. 10
2. 21465778 Ontario Inc. v. 1122077 Ontario Ltd. 2006 35819 (2006), 82 O.R. (3d) 757 (ON C.A.), per Feldman J.A., at para. 45
3. 3British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
4. 4Courts of Justice Act, s. 131.
5. 5Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)
6. 6Johanns v. Fulford 2010 ONCJ 756, at para. 13
7. 7Family Law Rules, O. Reg. 114/99 [as amended]
8. 8Erickson v. Erickson (May 16, 2000), Doc. 00-FL-868 (Ont. S.C.J.)
9. 9Hunt v. Hunt, 2001 ONSC 39078
10. 10Nairn v. Lukowski, (2002), 2002 78091 (ON SC), 29 R.F.L. (5th) 117 (Ont.S.C.J.), per Blishen J., at p. 120
11. 11Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (Ont. S.C.J.), per Blishen J., at paras. 9 to 12
12. 12S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (Ont.S.C.J.), per Perkins J. at paras. 16 and 17
13. 13M. M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, Ont.: Canada Law Book, 1987), at p. 2-46 [Orkin]; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 154, re-stated in Perri.
14. 14Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.
15. 15Osmar v. Osmar, 2000 20380 (ON SC), 2000 20380 (Ont. S.C.), at para. 11, Aston J
16. 16Rules of Civil Procedure, R.R.O. 1990, Reg 194
17. 17Osmar.
18. 18Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
19. 19B.V. v. P.V., 2012 ONCA 262, at paras. 14 and 15
20. 20Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
21. 21“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.
22. 22First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)
23. 23Legal Aid Services Act, 1998, SO 1998, c 26
24. 24Ramcharitar v. Ramcharitar, 2002 ONSC 53246, at para. 25
25. 25Zeleny v Zeleny (2004) 2004 5094 (ON SC), 69 O.R.(3rd) 287; Childs v. Childs, an unreported decision of Justice Corbett dated July 7, 2005; Fallis v. Garcia, an unreported decision of Justice Mossip, dated July 28, 2008 Friday v. Friday, 2013 CarswellOnt 13707, 2013 ONSC 6179
26. 26Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 43566 (ON SC), ONSC 43566, 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird& Berlins LLP (2009), 2009 26608 (ON SC), 2009 ONSC 26608, 74 C.C.E.L.(3d) 243 (Ont. S.C.), at paras. 10-17.
27. 27See: Boucher; Moon; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
28. 28Winton v. Lofranco (2005), 2005 63819 (ON SC), 21 RFL (6th) 228 (Ont. S.C.).
29. 29Mooney v. Fast, 2013 ONCJ 584
30. 30Gallacher v. Gallacher, 2005 ONCJ 326
31. 31Macdonald v. Magel, 2008 ONSC 36161
32. 32A.B. v. C.D., 2011 ONSC 1038.
33. 33Hall v. He, 2012 ONSC 6461.
34. 34Chin Pang v. Chin Pang, 2014 ONSC 585, at para. 13
35. 35Durkin v Cunningham, 2015 ONSC 1741, at para. 59