CITATION: Docherty v. Catherwood, 2016 ONSC 2140
COURT FILE NO.: 33889/11
DATE: 2016-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL MARTIN DOCHERTY
Audrey A. Shecter, for the Applicant
Applicant
- and -
DEBRA MICHELLE CATHERWOOD
Shannon Beddoe, for the Respondent
Respondent
HEARD: August 19, 2015, at Brampton, Ontario (Milton File)
PRICE J.
COSTS ENDORSEMENT
NATURE OF MOTION
[1] On July 1, 2015, almost two years after Justice Donohue made an order following a trial setting out the access that Mr. Docherty could exercise to the parties’ two sons, and ordering Ms. Catherwood not to relocate the children more than 30 kilometres from Milton. Ms. Catherwood was evicted from her home in Milton and relocated the children to her parents’ home in Alliston, 104 kilometres away. Two weeks later, Ms. Catherwood’s lawyer notified Mr. Docherty’s lawyer that Ms. Catherwood was withholding access to the children from Mr. Docherty as a result of concerns she had arising from an allegedly inappropriate conversation that Mr. Docherty had with the children. She invited Mr. Docherty to propose “how contact can continue in light of these concerns.”
[2] Although Ms. Catherwood later agreed to return the children to within 30 kilometres from Milton, she continued to withhold them from Mr. Docherty unless his access was supervised and took place during the day. Mr. Docherty moved to have Ms. Catherwood found in contempt of Justice Donohue’s order, and Ms. Catherwood brought a cross-motion to change the terms of Justice Donohue’s order to require that access be supervised.
[3] Following a hearing of the two motions, this court found Ms. Catherwood in contempt and ordered her to resume compliance immediately with Justice Donohue’s order, and to make up the access that Mr. Docherty had lost by reason of her unilateral action. The court granted her leave to bring a motion to vary Justice Donohue’s order in accordance with Rule 15 of the Family Law Rules, and asked the Office of the Children’s Lawyer to up-date the investigation it had done for the trial in 2013.
[4] The parties were unable to agree on the costs of the motions. This endorsement will address that issue.
ISSUES
[5] The court must determine whether either party should compensate the other for costs incurred in the motion, and, if so, the amount of costs to be paid.
PARTIES’ POSITIONS
[6] Mr. Docherty claims his costs on a full indemnity scale in the amount of $19,147.81, inclusive of H.S.T. and disbursements, based on his success in the motions and the fact that Ms. Catherwood precipitated the motions by her contempt. Ms. Catherwood submits that neither party should be ordered to pay costs as any order requiring her to pay costs would cause financial hardship to her and the children.
ANALYSIS AND LAW
a) Deferring costs to the trial judge
[7] Ms. Catherwood argues that the court should postpone the payment of any costs to the future when she is better able to pay costs. I have considered reserving the issue of costs to the judge hearing Ms. Catherwood’s motion to change Justice Donohue’s final order. However, Rule 24(10) of the Family Law Rules requires that costs be decided at each step in the case. Additionally, I am in as good a position as the judge hearing a motion to change to determine the costs of Mr. Docherty’s contempt motion and Ms. Catherwood’s cross-motion based on the objectives of costs orders and the factors listed in Rule 24(10) of the FLR, including the outcome of the motion and the reasonableness of the parties. For these reasons, I have concluded that I should determine the costs issue now, rather than reserve them to the trial judge.
The objectives of a costs order
[8] Indemnification of the successful party 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] The Court of Appeal articulated the fundamental purposes of a costs order in 2009, in Serra v. Serra.[^3]
[9] An appropriate costs order balances two conflicting principles:
A blameless litigant who is successful in a proceeding should not be required to bear the costs of having his or her rights tested.
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.
[10] The ultimate objective in balancing these two principles is to ensure that the justice system works fairly and efficiently.[^4]
The Discretion to be exercised
[11] The determination as to which party, if either, should compensate the other for their costs, and as to the amount of such costs, is “within the court’s discretion.”[^5] The court must exercise its discretion having regard to the objectives of costs awards, and to Rule 24(11) of the Family Law Rules, which sets out the factors to be considered when determining how the objectives are best attained in a particular case.
The Outcome of the motion
[12] The relative success of the parties on the issues in the motion is the starting point in determining costs.[^6] 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, or motions, and against the terms of any offers to settle.[^7] Mr. Docherty was successful in his motion, having secured an order finding Ms. Catherwood in contempt, and an order requiring her to resume his access to the children immediately and to make up the access he had missed.
[13] Mr. Docherty was also substantially successful in his opposition to Ms. Catherwood’s cross-motion, the court having found that there was no urgency that justified dispensing with a case conference before a motion to change was heard, and further having found that there was no need for Mr. Docherty’s access to be supervised, or that Mr. Docherty undertake therapy, pending the hearing of such a motion. The court asked the Children’s Lawyer to up-date the investigation it had done for the 2013 trial, but I do not regard that term as favouring either Ms. Catherwood or Mr. Docherty. Ms. Docherty achieved some success by avoiding the imposition of a fine for her contempt, and in being permitted to proceed with her motion to change Justice Donohue’s final order.
Factors to be considered
[14] Rule 24(11) of the Family Law Rules lists the factors the court should consider when 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.[^8]
Importance, complexity, and difficulty of the motion
[15] Ms. Catherwood acknowledges that the issues in the motions were important to both parties as they involved the safety and well-being of the children. Neither party argues that the motions involved issues of great complexity or difficulty, and I find that they did not.
Reasonableness of each party’s behaviour – scale of costs
[16] Rule 24(4) of the Family Law Rules explicitly authorizes the use of costs orders 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]
[17] Mr. Docherty seeks payment of his costs by Ms. Catherwood on a full recovery scale on the ground that she acted in bad faith by failing to comply with Justice Donohue’s order. 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,[^9] in 2000, and Hunt v. Hunt, in 2001.[^10] In those cases, it was held that bad faith could consist of conduct intended to deceive or mislead,[^11] or of an intentional breach of an agreement or court order in order to achieve an ulterior motive.
[18] These 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.[^12] [Emphasis added]
[19] Justice 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.[^13] [Emphasis added]
[20] 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,[^14] 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.”
[21] In 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”[^15] 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 of bad faith to justify an award of costs on a higher scale for a lack of success.
[22] The determination of costs in the present case is governed by the FLR, not by the Rules of Civil Procedure,[^16] and a finding of bad faith is not a condition precedent to full recovery of costs by the other side under the FLR.[^17] 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.^18A finding that the motion should not have been brought, or should not have been opposed, is sufficient to attract costs on a higher scale.
[23] In a family law case, the court need not find “special circumstances” before ordering costs on a substantial or full indemnity scale.[^19] It is, however, important to preserve the distinction between substantial and full indemnity costs, in order to delineate the gradations of unreasonable conduct and apply predictable consequences attendant on each. This court reviewed the jurisprudence distinguishing between substantial and full indemnity costs in the context of the Rules of Civil Procedure in 1623242 Ontario Inc. v Great Lakes Copper Inc., in 2016. It stated:
The general rule is that costs follow the event and will be awarded on a partial indemnity scale.[^20] In special circumstances, costs may be awarded on a higher scale, but those cases are exceptional and generally involve circumstances where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and/or unnecessarily run up the costs of the litigation.[^21] Substantial indemnity costs are the exception, not the rule.
Rule 57.01(4) provides that nothing in this rule or in the other costs rules affects the authority of the court to award all costs on a substantial indemnity scale or in an amount that represents full indemnity. The court has the discretion to order these costs, but it should exercise that discretion sparingly, in special and rare cases.[^22]
[24] I noted that the court awards costs on a substantial indemnity scale against litigants whose conduct is found to have been unreasonable, such as:
a) making a motion that had no prospect of success, or opposing a motion whose success was a foregone conclusion;
b) making unsupported allegations of fraud; or
c) failing to accept an offer that would have produced an outcome that was as favourable or more favourable than the one that ultimately resulted.
[25] The court awards full indemnity costs where there has been intentional wrongdoing, such as:
a) intentionally breaching agreements or court orders, as for financial disclosure, in order to gain strategic advantage;
b) intentionally making allegations of fraud, or otherwise lying to the court; or
c) intentionally relying on falsified documents, or making scandalous allegations of wrongdoing about the court or an officer of the court.
[26] The court concluded:
While there is discretion in the court to award costs on a full indemnity scale, such awards should be reserved for the most egregious cases. Such awards are appropriate, for example, where the court is punishing a litigant for falsifying documents submitted to the court, or intentionally making false allegations of fraud.[^23] [Emphasis added]
[27] I do not find that Ms. Catherwood sought to mislead the court by intentionally making false or relying on falsified documents, or that she made scandalous allegations against the court or its officers, including Mr. Docherty’s counsel. Her conduct does not justify an order requiring her to pay Mr. Docherty’s costs on a full indemnity scale.
[28] As a rule, the successful party in a motion made necessary by the responding party’s contempt is entitled to his costs on a substantial indemnity scale.[^24] This is because a finding of contempt is a finding of unreasonable conduct. Substantial indemnity costs do not follow automatically or invariably from a finding of contempt, but such a finding gives rise to a rebuttable presumption that the successful party is entitled to costs on a substantial indemnity scale. In In Astley v. Verdun, in 2013, Goldstein J. described the jurisprudence governing the imposition of substantial indemnity costs as it pertains to contempt, He then stated:
I characterize the test this way: there is a rebuttable presumption that substantial indemnity costs are appropriate in a contempt of court case. The presumption may be rebutted where the contemnor is suitably contrite, has attempted to purge his or her contempt, has taken steps to minimize costs incurred by the other party, and the contempt itself is towards the lower end of the "flagrant and wilful" scale.[^25]
[29] In assessing whether Ms. Catherwood is contrite and has taken steps to minimize the costs incurred by the other party, I must consider her failure to accept the Offer to Settle made by Mr. Docherty, and the submissions she has made on the issue of costs. Mr. Docherty made an Offer to Settle dated July 23, 2015, which was virtually identical to the outcome of the motions. Mr. Docherty’s Offer provided that the residential schedule set out in Justice Donohue’s order dated August 15, 2013, would resume immediately, and that Mr. Docherty would be entitled to 5 additional days with the children, which is what the court ultimately ordered. By not accepting the Offer, Ms. Catherwood added unnecessarily to the costs that both parties incurred in the motion.
[30] The only terms that the court ordered that were not contained in Mr. Docherty’s Offer to Settle was one granting Ms. Catherwood leave to continue her motion to change Justice Donohue’s final order from 2013, which term neither party requested, and one asking the Office of the Children’s Lawyer to up-date its 2013 investigation, which the parties also did not request. These terms were not necessary, as it was always Ms. Catherwood’s right to bring a motion to change a final order, and it was highly likely, if she did so, that the court would ask the OCL to up-date its investigation. The absence of these terms from Mr. Docherty’s Offer should not obscure the fact that Ms. Catherwood, by accepting the Offer, would have lost nothing that her continued litigation of the motions achieved, and could thereby have avoided the costs that both parties incurred from the time the Offer was delivered to the time when the court released its decision.
[31] Ms. Catherwood argues that while Mr. Docherty offered to resume the old access schedule, with make-up access, he offered no terms that responded to the relief that Ms. Catherwood sought in her cross-motion. Ms. Catherwood notes that she offered to settle the motions with limited (supervised) access for a period while Mr. Docherty sought help for his addiction issues, and while the Children’s Lawyer undertook a new investigation. She further argues that it would be unreasonable to expect Ms. Catherwood to accede to Mr. Docherty’s “wish that her concerns be completely disregarded…” I do not agree that this is what an acceptance of Mr. Docherty’s Offer would have entailed.
[32] Ms. Catherwood was entitled, at any time, to move for a change in Justice Donohue’s final order based on a material change in circumstances. She was also entitled to request an interim change in the terms of access. She was not entitled to achieve her objectives by unilateral action, as she did. She does not give any indication in her costs submissions that she recognizes the error in the course she took. Instead of taking responsibility for the motions, she blames Mr. Docherty for conduct that post-dated the motions, which is irrelevant to the court’s determination of costs. She states:
- While Ms. Catherwood has been found in contempt in relation to the withholding in July, Mr. Docherty’s conduct has been extremely poor and much of it in bad faith. Since the release of the Court’s endorsement, he has:
a. Continued to use abusive language towards Ms. Catherwood and the children;
b. Continued to be uncooperative regarding parenting issues;
c. Continuing to make allegations about Ms. Catherwood to school administrators; and
d. Threatened to “put a writ” on Ms. Catherwood’s new home, proving he is aware of the serious vulnerability of her financial situation.
- However, as stated earlier, this was a case where both parties held strong views as to what was best for their children. Even if either one is found to have engaged in unreasonable conduct, it is respectfully submitted that the Court must take the same as being the degree to which each party carried their convictions into these motions. Accordingly, the Respondent submits that no weight ought to be placed on the parties’ assertions of unreasonable conduct by the other, at least insofar as it relates to this costs determination.
[33] Ms. Catherwood’s argument discloses a remarkable lack of insight into the conduct that caused both parties to incur unnecessary costs in these motions. I am forced to conclude that only an order for costs on a substantial indemnity scale has any prospect of deterring Ms. Catherwood from continuing such conduct, and of encouraging her to be more circumspect in her conduct of the proceeding and her assessment of offers to settle that she receives.
[34] While the Family Law Rules reduce judicial discretion, the Court of Appeal in M. (C.A.) v. M. (D.), in 2003, noted that the court retains discretion to fashion a costs order that will create a just remedy.[^26] However, in M. (C.A.) v. M. (D.), the Court of Appeal upheld an award of costs in a custody case, based on the respondent mother’s unreasonable conduct, notwithstanding her limited financial means. The same reasoning dictates that Mr. Docherty be awarded his costs on a substantial indemnity scale in the present case. To relieve Ms. Catherwood of her presumptive obligation to pay Mr. Docherty’s costs on a substantial indemnity scale would deprive Mr. Docherty of protection from her contempt, and the costs benefit he earned by making a reasonable Offer to Settle which Ms. Catherwood refused to accept.
Lawyer’s rates
[35] Mr. Docherty’s lawyer, Audrey Schecter, was called to the Bar in Ontario in 2000. She practiced law for 15 years before arguing these motions. She was assisted by Erin Chaiton-Murray, who was called to the Bar in 2009, and who had practiced law for 6 years, and by their Law Clerk, Christina Boodhan.
[36] In determining the appropriate hourly rates to be assigned to her, the court follows the approach taken by Aitkin J. in Geographic Resources.[^27] 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 of Civil Procedure, sets out maximum partial indemnity hourly rates for counsel of various levels of experience.
[37] The Costs Bulletin suggests maximum hourly rates (on a partial indemnity scale) of $80 for law clerks, $225 for lawyers of less than 10 years’ experience, $300 for lawyers of between 10 and 20 years’ experience, and $350 for lawyers with 20 years’ experience or more.[^28] The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases.
[38] The 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, in 2012,[^29]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.
[39] Based on the Bank of Canada’s Inflation Calculator, available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2015
equivalent of the hourly rates in the Costs Bulletin are $94.05 for law clerks, $264.52 for lawyers of under 10 years’ experience, $352.70 for lawyers of between 10 and 20 years’ experience, and $411.48 for lawyers of over 20 years’ experience.
[40] The court is guided by the rates in the Costs Bulletin, as adjusted for inflation, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor, in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate.
[41] 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 24(11). 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.
[42] Rule1 of the Rules of Civil Procedure defines substantial indemnity costs to mean "costs awarded in an amount that is 1.5 times what would otherwise be allowable in accordance with Part I of Tariff A" - i.e. 1.5 times the partial indemnity rate.[^30] Costs calculated on a substantial indemnity scale, obviously,
may represent something less than full indemnity, but not always, depending on the seniority of the lawyers and their adjusted hourly rates, increased by 1.5. Courts have estimated substantial indemnity costs to be approximately 90% of costs on a full recovery basis,[^31] but this is not invariably so.
[43] As noted above, the Costs Bulletin, when adjusted for inflation, suggests a maximum hourly rate (on a partial indemnity scale) of $352.70 for lawyers who, like Audrey Schecter, have between 10 and 20 years’ experience, $264.52 for lawyers who, like Erin Chaiton-Murray, have under 10 years’ experience, and for lawyers of between 15 and 20 years’ experience, and $94.05 for law clerks.[^32] The upper limits in the Costs Bulletin are intended for the most complex and important of cases. Having regard to Ms. Schecter’s 15 years, and the moderate level of complexity of the motions, she would be entitled to claim $300 per hour on a partial indemnity scale, and $450 on a substantial indemnity scale. She claims $410 per hour on a full indemnity scale, which I find to be a reasonable rate on a substantial indemnity scale, as the rate allowed should not exceed the rate the client was charged. Having regard to Ms. Chaiton-Murray’s 6 years’ experience, I allow a rate of $250 for her, or $375 on a substantial indemnity scale. She claims a rate of $290 on a full indemnity scale, which, for the same reasons applied to Ms. Schecter, I find to be a reasonable rate on a substantial indemnity scale. Their law clerk is entitled to claim $95 on a partial indemnity scale and $142.50 on a substantial indemnity scale. She claims $205 on a full indemnity scale, which I reduce to $145 per hour.
Time properly spent on the case
[44] Rule 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.”
[45] Mr. Docherty’s lawyers spent a total of 38.2 hours on the motions, broken down as follows:
a) Ms. Schecter spent 33.5
b) Ms. Chaiton-Murray spent 3.2 hours
c) Ms. Boodhan (the Law Clerk) spent 1.5 hours
[46] I have compared the time spent by the principal lawyers for Mr. Docherty and Ms. Catherwood where their respective dockets or costs outlines provided hours for the substantially the same tasks. Ms. Schecter and Ms. Chaiton-Murray, collectively, spent 2.6 hours in research and 2.4 hours preparing a statement of law for the motions. Ms. Beddoe, for Ms. Catherwood, spent a total of 18.6 hours researching the law and preparing a factum and brief of authorities, consisting of the following:
a) 1.1 hours on August 14/15 drafting a contempt motion and cross-motion factum and doing legal research;
b) 3 hours on August 15/15 drafting the factum;
c) 7.2 hours on August 17/15 drafting the factum and preparing authorities;
d) 5.8 hours on August 18/15 preparing legal argument, reviewing Ms. Schecter’s case law, and preparing case summaries, and reviewing submissions;
e) 1.5 hours on August 18/15 compiling the factum and Book of Authorities and arranging to serve them.
[47] Ms. Schecter and Ms. Chaiton-Murray spent a total of 23.7 hours preparing the contempt motion and offer to settle, including correspondence, consisting of the following:
a) 8.7 hours in correspondence;
b) 9.7 hours preparing the contempt motion materials;
c) 5 hours preparing a responding affidavit; and
d) .3 hours preparing an offer to settle.
[48] Ms. Beddoe spent a total of 26.1 hours preparing the motion to change and cross-motion, and supporting affidavit, consisting of the following:
a) 4.2 hours drafting an offer to settle, discussing materials required for an affidavit with the client, and finalizing an Offer to Settle;
b) 5.8 hours on July 25/15 reviewing documents, drafting an outline of an affidavit, and beginning to draft an affidavit;
c) 8.3 hours on July 26/15 completing the drafting of the affidavit and corresponding with the client about it;
d) 6.2 hours on July 27/15 drafting a motion to change and Notice of Cross-motion, reviewing and commissioning the client’s affidavit; and
e) 1.6 hours on August 11/15 reviewing and revising the motions.
[49] Ms. Schecter spent 8 hours attending on August 19, 2015, and 1.5 hours preparing a costs outline. Ms. Beddoe spent 10 hours attending on August 19, 2015, including travel.
[50] Based on my review, I do not find the time claimed by Mr. Docherty for his lawyer’s time to be excessive or disproportionate to the time spent by Ms. Beddoe for the same or similar tasks. In reviewing a claim for costs, I need not undertake a line by line analysis of the hours claimed, nor should I second guess the amounts claimed unless they are clearly excessive or overreaching. I must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, award costs in a global fashion.[^33] I have reviewed the time claimed in Mr. Docherty’s costs outline, and do not find it to be clearly excessive or over-reaching.
[51] Applying Mr. Docherty’s lawyers’ hourly rates on a substantial indemnity scale, adjusted for inflation, Mr. Docherty produces fees in the amount of $14,880.50, consisting of the following:
a) Ms. Schecter spent 33.5 hours at $410 per hour, for a total of $13,735;
b) Ms. Chaiton-Murray spent 3.2 hours at $290, for a total of $928;
c) The Law Clerk spent 1.5 hours at $145, for a total of $217.50.
Disbursements
[52] Mr. Docherty claims a total of $2,231.15 for disbursements, including HST. The disbursements consist of $1,766.06 for process serving, $56.16 for mileage/travel, and $152.25 for photocopies. Mr. Docherty’s total disbursements are approximately three times the $655.40 spent by Ms. Catherwood. The major portion of the disbursements, however, are for process serving, and Ms. Docherty’s expense for this item was higher, this expense is one over which lawyers often have little control. Its amount is not challenged by Ms. Catherwood and I do not find it to be unreasonable, having regard to the fact that the lawyers’ offices are in Toronto and the court is in Brampton.
Other Relevant Matters
[53] The 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.[^34]
[54] Awards of costs in contempt motions vary greatly, depending on their factual complexity. I have considered the following costs awards made in such cases:
(a) In X.M. v. S.A.M., in 2007, Sproat J. awarded costs of $ 18,846.36 for the contempt motion.[^35]
(b) In Clinton v Clinton, in 2016, R.E. Charney J. awarded costs of $20,000.00 to the successful party on a contempt motion arising from a custody order.[^36]
(c) In Wentzell v. Schumacher, in 2004, Wein J. awarded costs of $19,500 to the father on a substantial indemnity scale for a contempt motion arising from a custody and access order.[^37]
[55] The costs ordered to be paid in such cases, involving motions to find a parent in contempt for breaching an interim custody and access order should have informed Ms. Catherwood’s reasonable expectation of the costs she might be required to pay if unsuccessful.
[56] Ms. Catherwood submits that she is financially unable to pay costs in the amount claimed by Mr. Docherty. While I accept that the costs order will be a strain on her, I can think of no other way of bringing home to Ms. Catherwood the cost to all concerned of both her self-help in withholding access from Mr. Docherty and, once he brought his motions, of her unreasonable refusal of his Offer to Settle. It is my view that if she is not required to pay Mr. Docherty’s costs, it will result in unfairness to him, and simply encourage her to re-litigate the issues decided by Justice Donohue more relentlessly.
[57] It is the responsibility of counsel to advise their 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 Ms. Catherwood received the appropriate advice from her counsel as to the risks she faced, and decided to proceed in spite of them, and to decline Mr. Docherty’s Offer to Settle, which could have brought the motions to an end.
[58] In all the circumstances, I find that the costs claimed by Mr. Docherty are proportionate to the interests at stake in these motions and to the costs awarded for similar motions in other cases.
Conclusion and Order
[59] For the foregoing reasons, it is ordered that:
Ms. Catherwood shall, within 60 days, pay to Mr. Docherty his costs of the motions in the amount of $19,046.12, consisting of the following:
(a) Total fees: $14,880.50
(b) H.S.T.: $1,934.47
(c) Taxable Disbursements: $1,974.47
(d) H.S.T.: $256.68
Price J.
Released: March 30, 2015
CITATION: Docherty v. Catherwood 2016 ONSC 2140
COURT FILE NO.: 33889/11
DATE: 2016-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL MARTIN DOCHERTY
Applicant
- and –
DEBRA MICHELLE CATHERWOOD
Respondent
COSTS ENDORSEMENT
Price J.
Released: March 30, 2016
[^1]: Fellowes, McNeil v. Kansa General International Insurance Co. 1997 12208 (ON SC), 1997 12208, 37 O.R. (3d) 464 (ON S.C.), para. 10
[^2]: 1465778 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]: Serra v. Serra, 2009 ONCA 395 66 R.F.L. (6th) 40 (Ont. C.A.), para. 8
[^4]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
[^5]: Courts of Justice Act, s. 131.
[^6]: Butty 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)
[^7]: Johanns v. Fulford 2010 ONCJ 756, at para. 13
[^8]: Family Law Rules, O. Reg. 114/99 [as amended]
[^9]: Erickson v. Erickson (May 16, 2000), Doc. 00-FL-868 (Ont. S.C.J.)
[^10]: Hunt v. Hunt, 2001 ONSC 39078 ()
[^11]: Nairn v. Lukowski, (2002), 2002 78091 (ON SC), 29 R.F.L. (5th) 117 (Ont.S.C.J.), per Blishen J., at p. 120
[^12]: Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (Ont. S.C.J.), per Blishen J., at paras. 9 to 12
[^13]: S.(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
[^14]: M. 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.
[^15]: Empire Life Insurance Co. v. Krystal Holdings Inc, [2009] O.J. No. 1095 (S.C.), at para. 19.
[^16]: Rules of Civil Procedure, R.R.O. 1990, Reg 194
[^17]: Osmar v. Osmar, 2000 20380 (ON SC), 2000 20380 (Ont. S.C.), at para. 11, Aston J
[^19]: Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
[^20]: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 239 (ON CA), 1994 ONCA 239 (), 17 O.R. (3d) 135 (C.A.)
[^21]: Standard Life Assurance Company v. Elliott (2007), 2007 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.)
[^22]: 1623242 Ontario Inc. v Great Lakes Copper Inc., 2016 ONSC 1002, paras. 86 to 87
[^23]: 1623242 Ontario Inc. v Great Lakes Copper Inc., at para. 95
[^24]: Cassidy v. Cassidy, 2011 ONSC 791, para. 14; Astley v. Verdun [2013] ONSC 6734 (SCJ) at paras 52 to 58
[^25]: Astley v. Verdun, para. 57
[^26]: M.(C.A.) v. (M.(D.), 2003 ON CA 18880 (),per Rosenberg J.A., para. 45
[^27]: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, paras. 7 and 11 to 16
[^28]: “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.
[^29]: First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, 2012 ONSC 1359 (S.C.J.)
[^30]: See Hanis v. University of Western Ontario, 2006 23155 (ON SC), [2006] O.J. No. 2763 (Ont. S.C.), per Power J.
[^31]: 680195 Ontario Ltd. v. 2169728 Ontario Limited o/a Stoneybrook Auto Service, 2010 ONSC 4064, para. 8, citing Hanis v. The University of Western Ontario et. al., 2006 23155 (ON SC), [2006] O.J. No. 2763 (S.C.J.), Power J., at para. 46.
[^32]: “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.
[^33]: Fazio v. Cusumano, 2005 33782 (ON SC), 2005 33782 (Ont. S.C.), at para. 8.
[^34]: See: Boucher; Moon; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).
[^35]: X.M. v. S.A.M., 2007 23596 (ON SC), para. 3
[^36]: Clinton v Clinton, 2016 ONSC 117, para. 22
[^37]: Wentzell v. Schumacher, 2004 4032 (ON SC), Paras 8 and 10