Court File and Parties

COURT FILE NO.: FS-13-18627 DATE: 20160912 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DONALD WARWICK NOBLE, Applicant AND: ROBYN BROOKE LYLE, Respondent

BEFORE: Harvison Young J.

COUNSEL: Donald Warwick Noble, Appearing in Person Joseph Kary, for the Respondent

HEARD: In Writing

Costs Endorsement

[1] On June 14, 2014, I released my reasons for judgment in this matter: Noble v Lyle, 2016 ONSC 3907. I invited the parties to submit their costs submissions. I have now received them and reviewed them.

[2] The applicant Mr. Noble, in fact, had sent cost submissions prior to the release of my decision. Although they were sent to me, I did not open the envelope because the court staff advised me that it contained costs submissions and accordingly it would have been improper to see or consider them before the judgment had been rendered.

The Parties’ Submissions

[3] Mr. Noble seeks $41,585.00 in costs and disbursements. While he was self-represented, he did seek and pay for legal advice at various points in the litigation. He claims $8598 with respect to amounts that he paid to legal professional at different points in the litigation (2 lawyers and one paralegal) and $28,600 for his own time billed at $100 an hour.

[4] Mr. Noble claims that he is entitled to the costs he claims, as he was successful and Ms. Lyle was unreasonable throughout the litigation which began in 2013. He points to offers which he made to Ms. Lyle at various points, and to the fact that she did not make any real offers at any point in the litigation.

[5] In response, Mr. Kary submits on behalf of Ms. Lyle, that there should be no order as to costs. First, he submits that success was divided. While he acknowledges that Mr. Noble was entirely successful on the issue of retroactive child support, he notes that Mr. Noble was not successful in his claim for a restraining order against Ms. Lyle. He also submits that Mr. Noble’s documentation with respect to the amounts he claims to have paid for legal assistance is defective, that some of the disbursements should not be permitted and that his claim for his own time is not permissible in the absence of evidence of lost opportunity to earn income.

[6] Finally, he points to his client’s financial situation and means to pay. Ms. Lyle has recently undergone surgery for breast cancer, is currently undergoing chemotherapy and will then undergo radiation. She is not currently working and will apparently not be working for some time.

Law and Analysis

[7] The submissions effectively raise a number of issues governed by Rule 24 of the Family Law Rules:

a. Success of the parties; b. Offers and Reasonableness of the parties c. Quantum claimed; d. Present circumstances of the losing party.

[8] Rule 24(1) states that the successful party is presumptively entitled to his or her costs. Mr. Kary submits that this does not apply in this case because success was divided.

[9] I disagree. By far the lion’s share of the trial centred on the issue of retroactive child support and this is reflected in my reasons for judgment in which the restraining order claim is dismissed in 6 paragraphs out of 134 paragraphs of the reasons. But for Ms. Lyle’s motion to change, there would have been no litigation and no trial.

[10] Even if I agreed that success was divided on this basis, I would not allow any costs to Ms. Lyle, though I would reduce the amount to which Mr. Noble is entitled somewhat to reflect his lack of success on this issue. I am satisfied that Ms. Lyle’s conduct has been unreasonable throughout this litigation: see Rule 24(5). This is reflected partly by the absence of any offers to settle from her in the record. It is also clear from reading the endorsements in the file that show, time and time again, that she regularly failed to properly prepare for court appearances or to fully comply with court orders which had the effect of needlessly multiplying the number of appearances and of reducing their efficacy on a number of occasions.

[11] Mr. Noble, on the other hand, behaved reasonably throughout this litigation and there is nothing to defeat the presumption that he is entitled to his costs. While he defended the claim vigorously, he did make numerous offers to settle at various points, though none was in effect during the trial itself. He worked extremely hard and did all that could have been expected of him, as a self-represented litigant who could not have afforded to be represented throughout the trial, to try to respect the process and rules of court. It is clear from the many endorsements on the record that he made every effort to comply with the court orders, that he was generally prepared, and that he would very much have liked to resolve this matter without going to trial. The fact that he was generally better prepared that Ms. Lyle was reflected by the fact that the case management judge, Kiteley J., ordered that for purposes of the hearing of the motion, Mr. Noble go first and be treated as the applicant. She reserved the costs of one case conference in late 2013. On that occasion, she had noted that Ms. Lyle had failed to comply with orders previously made, thus limiting the efficacy of that case conference. At that point, Mr. Noble was represented by Mr. Paul Pellman.

[12] In considering costs, Rule 24(11) sets out the following factors for the court to 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).

[13] The issue of retroactive support was, in this case, relatively complex given the span of Ms. Lyle’s claim over many years. With respect to quantum, I do not agree with Mr. Kary that defects in the documentation of his costs should operate to preclude a party from making those claims. I also note that Mr. Kary did not provide his own bill of costs, so the court is not able to determine what he would have sought in costs from Mr. Noble had he been successful. I also do not agree with Mr. Kary’s submission that Mr. Noble should not be entitled to recover any costs with respect to legal advice obtained from Ms. Olsen because she was not formally on the record.

[14] However, I agree with Mr. Kary that Mr. Noble cannot claim an hourly rate for his own time. He claims $28,600 based on an hourly rate of $100. I have no doubt whatsoever that Mr. Noble devoted enormous amounts of time to this litigation. It was evident that he did. While it would make some sense to infer that this has had some effect on his work performance, and that he might have been able to earn additional income had he not been spending so much time on this litigation, that does not satisfy the legal test set out by the Court of Appeal which binds this court.

[15] The cases of Fong v. Chan (1999), 46 O.R. (3d) 330 and Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div.Ct.) stand for the principle that a self-represented litigant is not entitled to compensatory costs in the absence of evidence showing that he or she has foregone the opportunity to earn income in the course of the preparation involved for the litigation.

[16] Accordingly, the greatest amount of costs to which Mr. Noble could be entitled is $8,598 + disbursements. In my view, this total amount is a reasonable representation of his actual costs. It is clear that Mr. Noble did consult and pay for legal services at various stages and in my view, the amount is reasonable in light of the complexity, the issues and amounts claimed and the number of appearances. Had he been represented for all or more of the process, this amount would likely be much greater. I would reduce this amount somewhat to take the fact that some time was taken at trial to address the restraining order with respect to which Mr. Noble was not successful.

[17] Given Mr. Noble’s success at trial, it is not necessary in my view to distinguish between Mr. Pellman’s fees in relation to the case conference with respect to which Kiteley J. reserved costs to the trial judge and his other legal services in relation to this motion to change.

[18] With respect to disbursements, I find that they are reasonable although I would not allow the claims for the transcripts for the reasons given by Mr. Kary. In my view, Mr. Noble should be awarded disbursements in the total amount of $2500. That would reduce the maximum award to $11,098.

[19] This brings me to the question of Ms. Lyle’s present circumstances.

[20] As Benotto J.A. wrote in Fielding v Fielding 2015 ONCA 901 at para. 85:

Litigation is expensive. Unlike some types of litigation, in family law, there is no impersonal corporation injecting funds into the settlement or judgment. The family is spending its own money, thereby reducing what is left to live on. Every day that family law litigation continues, the legal costs mount and the money for the family diminishes. This is but one of the many reasons for the emphasis on resolution.

[21] I am satisfied on the record before me that Ms. Lyle has a limited ability to pay costs, especially at the moment. However, this litigation was brought by her and as I have outlined, its length and course were largely determined by her. This is a family of limited means and it appears that the money spent on it has had a negative impact on the amount of money available to support and assist Brooke (even recognizing that at this point she is not entitled to support unless she is a full-time student) by both parents. Further, it appears likely that it will continue to do so. This burden should not be inordinately borne by Mr. Noble who was the successful party who behaved reasonably.

Conclusion

[22] Having taken all the relevant considerations into account as I have discussed above, I would order that Ms. Lyle pay costs to Mr. Noble in the amount of $8,500 which I find to be fair and reasonable in all the circumstances.

[23] I would make one last comment before my involvement with this matter ends with the release of this costs award.

[24] Mr. Kary states in his submissions that Brooke has offered to try to assist her mother with her chemotherapy costs. I also note that Mr. Noble claims that Ms. Lyle’s family has means and so she is able to manage financially. Both these points are irrelevant to these costs determinations. However, as the trial judge, and as I stated in my reasons, it is clear that Brooke has suffered over the years as a result of the conflict between her parents. While she is legally an adult, she still needs both her parents and her mother’s health issues are no doubt an additional stress for her. Conflict will continue to affect her. My parting words would be simply to implore both parents to try to find it in their hearts to show some compassion, generosity and forgiveness to each other in the interests of the future well-being of their daughter.

[25] An order will issue that Ms. Lyle is to pay costs in the amount of $8500 payable forthwith.

Harvison Young J. Date: September 12, 2016