CITATION: Voth v. Voth, 2016 ONSC 4002
COURT FILE NO.: FS-99-39439-02
DATE: 2016 06 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Stewart Voth
In Person
Applicant
- and -
Farah Voth
In Person
Respondent
HEARD: In writing
ENDORSEMENT RE: COSTS
Justice M.G. Emery
[1] I released my Reasons for Judgment on May 16, 2016 on the motion to change of the applicant father (Stewart Voth) heard in Brampton on February 8, 9 and 23, 2016. At the end of those reasons, I indicated that if Stewart Voth seeks costs, he was invited to file written submissions by May 27, 2016. The respondent mother Farah Voth would then have until June 10, 2016 to file her submissions in response.
[2] I have now received the submissions of Mr. Voth. His submissions consisted of a simple request for costs of $100 per day for 12 days over the life of the motion to change, for a total of $1,200. Ms. Voth did not file any responding submissions by the date she was given to do so.
[3] Every costs order involves a consideration of entitlement, scale and quantum. Entitlement requires the court to determine the proper party to award costs, leaving the other party to pay them. Scale refers to the level of costs to be paid, in order to reimburse the party awarded costs for legal fees and out-of-pocket expenses on a partial indemnity, substantial indemnity or full recovery basis. The quantum of those costs calls upon the court to set an actual amount for the costs one party is to pay the other.
[4] When setting the quantum of costs, the court is directed to consider the factors set out in Family Law Rule 24(11). When setting those costs, a judge is exercising his or her discretion given under Section 131 of the Courts of Justice Act to award the costs of, and incidental to, a proceeding or a step in that proceeding.
[5] This discretion is subject to the provisions of a statute or rules of court. As the Family Law Rules are rules of court applicable to family law proceedings, my discretion to award costs is modified by Family Law Rule 24(11) that mandates that I consider the following factors:
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. O. Reg. 114/99, r. 24 (11).
[6] Family Law Rule 24(11) also requires me to consider any other relevant matter. I speak of two other relevant matters here that are relevant to this costs award.
[7] First, Fong v. Chan, (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont C.A.) sets out the three fundamental objectives that the modern costs rules are designed to serve:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement; and
To discourage and sanction inappropriate behaviour by litigants.
[8] The same three objectives for the modern costs rules have been recognized as applicable to family law proceedings in Serra v. Serra, (2009) ONCA 395.
[9] Second, it is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what the unsuccessful party could reasonably expect to pay as those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 CanLII 14579 (ON CA), [2004] 71 O.R. (3rd) 291.
[10] The courts in Ontario now recognize that self-represented litigants should be entitled to costs if they are the successful party in a proceeding, but not for costs calculated on the same basis as those litigants who retain counsel. In Fong v. Chan, the Court of Appeal explained that a self-represented litigant should not recover costs for the time and effort that any litigant in the case would have devoted to the case. The Court of Appeal then set out the entitlement of a self-represented litigant to, and the limits of, costs in the following way:
[26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.
[11] Generally speaking, costs submissions do not require that evidence be filed by counsel or a self-represented litigant in support of those submissions. Counsel are expected to make accurate and truthful representations as to the time and effort expended for fees, and the precise amount for disbursements incurred when making submissions on costs as officers of the court. Self-represented litigants who give estimates of expended time and details of disbursements incurred may be called upon to provide evidence in affidavit form to substantiate their claims for costs if the court considers it necessary. This power flows from the court’s discretion over the costs process if those time estimates or disbursements seem unreasonable in the experienced eyes of the court.
[12] Costs are not intended to be punitive in nature. Rather, the purpose of a costs award is to compensate the successful party in a case or a step in a case for the expense to which he or she has been put through the litigation process. This is illustrated in the concept of recovery of costs in Family Law Rule 24, and the levels of indemnity for costs generally available for the court to grant.
[13] The Court of Appeal in Fong v. Chan made it clear that even if self-represented litigants are entitled to costs if they are the successful party in a proceeding, they are not entitled to costs calculated on the same basis as those litigants who retain counsel. The self-represented litigant should not recover costs for the time and effort that any litigant in the case would have devoted to the case. Generally, they must satisfy the court that they have incurred an opportunity cost for doing so.
[14] There was no evidence or representation given by Mr. Voth that he was not paid by his company when attending court on each of the court days. Mr. Voth did not submit any evidence that he had incurred an opportunity cost by foregoing remunerative activity. I find there has been no basis provided to support his claim for costs.
[15] I therefore make no award to either party on Mr. Voth’s motion to change.
Justice M.G. Emery
Released: June 17, 2016
CITATION: Voth v. Voth, 2016 ONSC 4002
COURT FILE NO.: FS-99-39439-02
DATE: 2016 06 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Stewart Voth
Applicant
- and –
Farah Voth
Respondent
ENDORSEMENT RE: COSTS
Justice M.G. Emery
Released: June 17, 2016