CITATION: Chomos v. Hamilton, 2016 ONSC 6232
COURT FILE NO.: F1817/13
DATE: 2016-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tracey Chomos
Applicant
– and –
Selwyn Lloyd Hamilton
Respondent
Michael P. Clarke, for the Applicant
Self-Represented Respondent
THE HONOURABLE MR. JUSTICE PAZARATZ
[1] I have reviewed written costs submissions flowing from my 175 paragraph judgment dated August 17, 2016 following a six day trial.
a. The Applicant mother seeks full indemnity costs totalling $54,001.06.
b. The Respondent counters that the overall amount claimed is excessive, and that in any event any costs award should only be on a partial or substantial indemnity basis.
OVERVIEW
[2] Recapping the file:
a. The parties had a brief unmarried relationship resulting in the birth of a daughter who was just weeks old when the parties separated in 2013– and three and a half years old when the trial was heard in August 2016.
b. The Applicant mother initially claimed custody, child support and a constructive trust interest in the Respondent’s home.
c. The Respondent also sought sole custody and child support.
d. Integral to the custody claims was a major disagreement as to whether – starting next year – the child should attend French immersion school in the Applicant’s city, or a homogenous French school in the Respondent’s city.
e. Each party made related claims for things like health care coverage, life insurance, etc.
[3] Many of the claims were settled before or at the commencement of trial.
a. The Applicant’s constructive trust claim resolved within months of the Application being filed.
b. Child support and timesharing were settled by partial minutes filed at the beginning of the second day of trial.
c. The parties also reached an important factual acknowledgement on the second day of trial: Both parents are equal in terms of instrumental parenting skills, and the quality of their loving relationship with their daughter.
[4] The trial was intensely contested on the remaining issues of custody and choice of school. On both of these related topics, the parties framed the debate as an “either/or” choice.
a. Neither party proposed any sort of middle ground, such as joint custody or shared parenting.
b. Similarly, there was no suggestion of compromise with respect to school language and location.
[5] Three witnesses testified at length:
a. The Applicant (represented by counsel).
b. The Respondent (who represented himself at trial, although he was previously represented by two successive lawyers).
c. Karen Bridgman-Acker, a clinical investigator who prepared a section 112 report for the Children’s Lawyer.
[6] The Applicant was entirely successful on the issues which went to trial.
a. She was granted sole custody and sole decision making authority on all issues.
b. Her schooling proposal was accepted in its entirety: French Immersion in Waterdown.
[7] The end result on just about all topics was consistent with Bridgman-Acker’s recommendations in her December 1, 2015 OCL report.
a. The Applicant had accepted those recommendations on all but one issue – and I ended up agreeing with the Applicant on that minor change (in relation to access exchange arrangements).
b. The Respondent fundamentally rejected Bridgman-Acker’s recommendations.
c. In my written judgment I set out in some detail the reasons why I agreed with the Respondent that there was an isolated irregularity with respect to the clinical investigator’s methodology. For that reason I did not rely on the section 112 recommendations.
d. But the factual information prepared by Bridgman-Acker was entirely consistent with the Applicant’s narrative – and largely inconsistent with the Respondent’s descriptions. Despite lengthy cross-examination, the Respondent was unable to undermine the clinical investigator’s evidence with respect to the relevant dynamics in Grace’s life.
GENERAL PRINCIPLES
[8] Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M. 2003 18880 (ON CA), 2003 18880 (Ont. C.A.); Andrews v. Andrews 1980 3619 (ON CA), [1980] O.J. No. 1503 (Ont. C.A.); Wilson v Kovalev 2016 ONSC 163 (SCJ).
[9] Rules 18 and 24, and most of the case law focus on two words: “Success” and “Reasonableness”. The latter entails two components:
a. Reasonableness of behaviour by each party.
b. Reasonableness of the amount of costs to be awarded.
[10] In Serra v. Serra 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
a. To partially indemnify successful litigants for the cost of litigation.
b. To encourage settlement; and
c. To discourage and sanction inappropriate behaviour by litigants.
[11] The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), 2004 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe 2010 ONSC 1044, 2010 ONSC 1044 (SCJ).
[12] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v Selznick 2013 ONCA 35, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis 2005 36447 (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray (2005) 2005 46626 (ON CA), 2005 46626 (Ont. C.A.); Guertin v Guertin 2015 ONSC 5498, 2015 ONSC 5498 (SCJ).
SUCCESS & OFFERS TO SETTLE
[13] The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1); Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), 2000 22584 (SCJ).
[14] To determine whether a party has been successful, the court should take into account how the order or eventual result compares to any settlement offers that were made. Lawson v. Lawson 2008 23496 (ON SC), 2008 23496 (SCJ).
[15] Rule 18 deals with the formalities and consequences of offers. Rule 18(14) provides that a party who makes a written offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled, unless the Court orders otherwise, to costs to the date that the offer was served and full recovery costs from that date.
[16] Offers to settle are to be encouraged, and severable offers (or separate offers on specific issues) are particularly helpful to the settlement process.
[17] The Applicant filed the following Offers to Settle:
a. June 19, 2015 non-severable offer dealing with all issues.
b. Feb 3, 2016 severable offer dealing with all issues, broken down into 12 separate sections.
c. August 5, 2016 non-severable offer, filed at the end of the fourth day of trial.
[18] The Respondent filed the following Offers to Settle:
a. February 15, 2016 non-severable offer dealing with all issues.
b. July 20, 2016 non-severable offer dealing with all issues.
c. August 8, 2016 non-severable offer, filed one day before the fifth day of trial.
[19] To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (SCJ); Rebiere v Rebiere 2015 ONSC 2129, 2015 ONSC 2129 (SCJ); Scipione v Scipione 2015 ONSC 5982, 2015 ONSC 5982 (SCJ). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order (Sepiashvili v. Sepiashvili, 2001 25708 (ON SC), 2001 CarswellOnt 3459, additional reasons to 2001 CarswellOnt 3316 (SCJ); Wilson v Kovalev (supra).
[20] None of the non-severable offers filed by the parties trigger cost consequences pursuant to Rule 18(14).
a. The Applicant’s June 19, 2015 offer correctly anticipated most of the outcome, but the “package’ included child support higher than the Respondent ultimately had to pay.
b. The Applicant’s mid-trial offer dated August 5, 2016 was not filed seven days before the trial, as required by Rule 18(14)(2).
[21] Indeed, both the Applicant’s non-severable offer dated August 5, 2016 and her severable offer dated February 3, 2016 suffer from an additional – and fatal – defect.
[22] The August 5, 2016 offer specified that if the Respondent accepted by August 9, 2016, he would have to pay $16,000.00 costs; and if he accepted after August 9, 2016 he would have to pay $28,000.00 costs.
[23] Her February 3, 2016 offer quite astutely divided various topics into individual sections, any of which could be accepted.
a. Unfortunately, the offer included the additional requirement that sections could only be accepted without costs for 30 days.
b. Any acceptance after 30 days would entail a requirement that the Respondent pay to the Applicant her costs incurred on a partial indemnity basis, from the November 6, 2013 commencement of the proceedings to the commencement of trial.
c. In each case, the Respondent couldn’t accept a substantive term without also accepting a specific (and potentially quite onerous) costs penalty.
[24] An offer to settle substantive terms which also includes a predetermination of costs perverts the Rule 18(14) analysis, because the party ends up trying to claim credit for accurately predicting a costs determination a judge has not yet made.
[25] The ordinary sequence:
#1 The judge hears the evidence at a trial.
#2 The judge hears submissions on substantive terms.
#3 Judgment is rendered.
#4 The judge then hears submissions on costs.
#5 Only then are the issues of entitlement and quantum of costs determined.
[26] The Applicant now seeks full indemnity costs, arguing that she obtained “an order that is as favourable as or more favourable than” her offer, using the language of Rule 18(14)(5).
[27] But my August 17 2016 judgment included none of the costs requirements the Applicant inextricably linked to her proposed substantive terms. At that stage I merely invited submissions so that – on a future occasion – I would be in a position to embark upon a detailed costs analysis.
[28] Even the “no costs if accepted within 30 days” provision of the Applicant’s February 3, 2016 offer jeopardizes the ability to seek full indemnity costs: What if the Respondent agreed to all of the Applicant’s proposed terms, but wanted an opportunity to argue that he should be on the receiving end of costs? There are all sorts of reasons why predetermined costs penalties can discourage litigants from accepting otherwise attractive offers.
[29] Rule 18(14) contemplates full indemnity for costs where all of the terms of an offer have been obtained in the trial judgment. An offer which includes costs obligations not yet determined by the court, cannot satisfy the strict requirements of this section.
[30] However, even if Rule 18(14) doesn’t apply, Rule 18(16) allows the court to consider any written offer, the date it was made, and its terms. This provision allows me to take into account the fact that the Applicant consistently made good faith settlement proposals. In contrast, none of the Respondent’s offers come even close to reflecting the overall result of this case.
[31] I note however that the Respondent says it was difficult for him to consider some of the Applicant’s offers/proposals because she had not provided sufficient information about her plans involving the child.
THE OUTCOME
[32] A brief review of the issues will clearly establish that the Applicant was overwhelmingly successful in this litigation.
[33] The most important issues – and the ones which required a full trial – were custody and school decision making. The Respondent did not challenge the Applicant’s characterization that these issues commanded about 65 per cent of the time and expense of this litigation.
a. Both parties sought a sole custody designation in their favour. The Applicant was successful in obtaining sole custody and complete decision making authority.
b. The parties presented very different school proposals for the child, both in terms of location and educational program. Again, the Applicant was entirely successful in obtaining an order that Grace would attend a French immersion school near her home.
c. The Applicant’s position on both of these issues was supported by the OCL clinical investigator.
d. I am satisfied that the Applicant made consistent and meaningful efforts to settle the custody issue without a trial. She repeatedly tried to reassure the Respondent that he would continue to have meaningful involvement as a parent. To her credit, at times the Applicant was prepared to consider resolution which did not specify either parent having “custody”, so long as primary residence and decision making were formalized. None of this was acceptable to the Respondent.
e. Speaking plainly, the custody determination wasn’t a close call.
f. I found that the Applicant was an enlightened, fair-minded parent who would promote Grace having a meaningful father-daughter relationship.
g. While the Respondent was successful in establishing a minor defect in Bridgman-Acker’s methodology, the clinical investigator’s factual observations were not undermined during intensive cross-examination.
h. In contrast, I found that the Respondent was selfish, devious and exclusionary toward the Applicant. He made some astonishingly bad decisions which had negative consequences for Grace.
i. I had no difficulty concluding that a sole custody designation in favour of the Applicant was in the best interests of the child.
[34] The school issue was perhaps less clear cut.
a. In other circumstances the competing positions and priorities might have been more closely balanced.
b. But ultimately the Respondent’s overbearing and controlling personality doomed his request that Grace attend a French only school in his community.
c. The Respondent’s persistent exclusionary behaviour toward the Applicant – and his complete lack of insight or reflection on the topic – caused me to conclude that if the Respondent secured French-only schooling for Grace, he would use that arrangement to shut the English-speaking mother out of the child’s life.
[35] It is hard to understand why the timesharing issue advanced as far as day two of the trial (when final minutes were filed reflecting the position the Applicant had been proposing all along).
a. I found that from the very outset the Applicant took a reasonable and fair-minded position in relation to the Respondent having generous contact with Grace – basically whenever his shift work allowed it.
b. She facilitated generous timesharing from the day after separation. I found that there was no basis for the Respondent’s professed fear that every visit might be his last, and that he would never see his daughter again.
c. While there was a brief period in October 2013 when timesharing became strained as a result of allegations the child was experiencing spider bites at the Respondent’s residence, I find that the Applicant acted reasonably trying to address a problem which even the Respondent’s then-solicitor acknowledged. The Applicant acted reasonably in suggesting the parties address pressing issues by having a four-way meeting with counsel. The Respondent’s decision to reject or ignore those proposals was unreasonable and unhelpful.
d. The parties consented to a temporary order on February 25, 2014 which gave the Respondent between nine and 12 overnights each month.
e. The Applicant continued to promote that schedule even after the term specified in the order lapsed.
f. The OCL clinical investigator recommended a continuation of that timesharing schedule, and the Applicant accepted that recommendation.
g. The Respondent consistently proposed that he have Grace in his care between 15 and 18 days every month. It was never clear how such a schedule was either workable or in the best interests of the child.
h. In any event, on day two of the trial the Respondent consented to the “9 to 12 overnights per month” which the Applicant had been proposing all along. The partial minutes left costs in the discretion of the court.
i. The Applicant was entirely successful on this issue which she says took about 20% of the time and expense of this court case.
[36] In relation to child support, on day two of the trial the parties filed minutes of settlement which require the Respondent to pay $500.00 per month child support commencing September 1, 2016.
a. The minutes were silent with respect to costs.
b. The amount actually represents a reduction from the full guideline amount the Respondent was previously paying pursuant to a consent order.
c. At the commencement of the trial the Applicant sought a continuation of full guideline support together with some retroactive adjustment.
d. The parties ultimately settled on child support significantly below the table amount, in recognition of the generous timesharing the Respondent would be having. As well, the Respondent was successful in resisting any retroactive adjustment.
e. A compromise resolution was also reached in relation to section 7 expenses.
f. The Applicant claims costs on this issue which she estimates as accounting for approximately 10% of the total fees and time expended.
g. But I find that there was divided success on this issue. Pursuant to Rule 24(6) I decline to order any costs in relation to child support.
h. While the Respondent submits there were other areas where success was also divided, I find that none of those other topics generated very much in terms of legal work or fees.
[37] In relation to the constructive trust claim, I find that it was necessary for the Applicant to initiate such a claim in order to secure reimbursement of significant monies advanced to the Respondent in anticipation of their cohabitation.
a. Fortunately the claim was resolved almost immediately after the Applicant filed a certificate of pending litigation.
b. The Respondent says there was no need for the Applicant to litigate this issue, because he always agreed he would repay the money and he just needed time to secure the funds.
c. But I note that even though the Respondent secured the remaining $53,000.00 in August 2013 – before the Applicant filed her court documents – he didn’t actually advance the funds until December 2013 – after the Applicant filed her court documents.
d. The Applicant desperately needed the money she was entitled to, after leaving this brief, disastrous relationship. She had to initiate court proceedings to secure the funds.
e. The Applicant estimates the constructive trust claim accounted for about five percent of her overall expenses.
f. I believe a small about of indemnification is appropriate on this relatively straightforward issue.
[38] A number of other factors must be considered in determining costs.
REASONABLE BEHAVIOUR
[39] Rules 24(5), 24(8), and 24(11)(b) all require that the court consider the reasonableness of each party’s behaviour.
[40] I have already found that the Respondent’s domineering, controlling and exclusionary behaviour in relation to the child was unreasonable. That’s largely why the Applicant was awarded custody, and the Respondent was entrusted with virtually no decision making authority.
[41] Apart from the Respondent’s unreasonable behaviour as a separated parent, to a certain extent I find that the Respondent also behaved unreasonably as a self-represented litigant.
a. Although he represented himself at trial, he was previously represented by two lawyers.
b. Nonetheless, much of his evidence and cross-examination was unfocussed and unhelpful to the court. This resulted in wasted time.
c. As well, he blamed some of his inappropriate parenting decisions on ignorance of the law.
d. If self-represented parties are going to take a particularly aggressive approach to custody litigation, they have an obligation to fully inform themselves about what they are getting into – and the potential ramifications.
e. In quite a number of instances, the Respondent either failed to address allegations made against him, or he failed to present evidence in support of the narrative he wanted the court to accept.
BAD FAITH
[42] The Applicant submits that much of the Respondent’s unreasonable behaviour was so extreme as to constitute “bad faith”. Pursuant to Rule 24(8) if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.
[43] But Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) 2007 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); Cozzi v. Smith 2015 ONSC 3626, 2015 ONSC 3626 (SCJ).
[44] In S.(C) v. S.(C) (supra) Perkins, J. defined bad faith as follows:
In order to come within the meaning of bad faith in sub rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other 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.
[45] Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (ON SC), 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (ON SC), 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).
[46] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).
[47] To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison 2015 ONSC 2002.
[48] Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or, an intentional breach of court order with a view to achieving another purpose: Piskor v. Piskor, (supra); Erikson v. Erikson 2001 39078 (ON SC), 2000 29675 (ON SC), 2000 29675 (SCJ); Hunt v. Hunt 2001 39078 (ON SC), 2001 39078, [2001] O.J. No. 5111 (SCJ).
[49] I find that the Respondent’s behaviour may often have been unreasonable, but it did not include the requisite intent to harm, conceal or deceive. There no finding of bad faith.
AT EACH STEP
[50] Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs. Gammon v. Gammon, 2008 54968 (ON SC), 2008 CarswellOnt 6319 (SCJ); Fawcett v. Richards, 2009 CarswellOnt 3229 (SCJ); Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (Ont. C.A.);Wilson v Kovalev (supra); Jackson v Mayerle 2016 ONSC 1556 (SCJ).
[51] The Respondent submits many of the items now being claimed by the Applicant are specifically precluded by Rule 24(10). He says if the inappropriate docket entries are removed, the Applicant’s best case scenario under full indemnification would be $30,610.00 for fees and $310 for disbursements. And the Respondent says full indemnification cannot be justified. The Applicant denies that she is claiming costs for any earlier motion or conference.
[52] The bill of costs filed by the Applicant’s lawyer is only two pages long and includes a very general summary of services from October 9, 2013 to August 2016, with fees and disbursements totalling $54,001.06.
[53] There is no absolute requirement that a bill of costs must follow an “itemized by date and task” format. But particularly where large amounts of money are being claimed, the party seeking costs has an obligation to provide sufficient information:
a. To particularize what work had to be performed and why.
b. To address varying levels of indemnification which may apply to different issues.
c. To reassure the court that costs are not currently being claimed for previous steps or events where costs have already been dealt with (or should already have been dealt with). This requires more than a generic statement that unrecoverable costs are not being claimed.
[54] A much more detailed breakdown of the Applicant’s costs claim would have been both helpful and appropriate. Jackson v Mayerle (supra). In Blank v. Micallef 2009 60668 (ON SC), 2009 60668, 2009 CarswellOnt 6790 (SCJ) a costs claim was reduced because the lawyer’s bill of costs provided insufficient detail, and simply provided a general breakdown with a total of 49.2 hours. Ricchetti J. stated at paragraph 18: “It is impossible for me to determine whether the hours were reasonably necessary without a breakdown of the time spent on each task.”
[55] I accept the Respondent’s submission that the Applicant’s bill of costs lacks sufficient particularity to allow comprehensive consideration of Rule 24(10).
PROPORTIONALITY
[56] I have already identified that in my view the Applicant was clearly successful, but this is not a case for full indemnification.
[57] Even if I had concluded that the “full recovery” provisions of the Rules are triggered – either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith – quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner 2015 ONCJ 318, 2015 ONCJ 318 (OCJ). The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v Slongo 2015 ONSC 3327, 2015 ONSC 3327 (SCJ). The court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances. M.(C.A.) v. M.(D.) (supra); Scipione v Scipione (supra).
[58] In Biant v. Sagoo 2001 28137 (ON SC), 2001 28137, [2001] O.J. No. 3693 (SCJ) Justice Perkins stated:
“The preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.”
[59] In Sepiashvili v Sepiashvili (supra) Justice Wildman J stated at paragraph 20:
“…Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term “full recovery costs”, there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner…..”
[60] The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. Pagnotta v. Brown [2002] O.J. No. 3033 (SCJ); Gale v. Gale (2006) CarswellOnt 6328; Jackson v Mayerle (supra).
[61] By the same token, proportionality should not result in reduced costs where the unsuccessful party has forced a long and expensive trial. Murphy v. Murphy 2010 ONSC 6204, 2010 ONSC 6204 (SCJ); Philippe v Bertrand 2015 ONSC 2449, 2015 ONSC 2449 (SCJ).
[62] The Supreme Court of Canada has recognized in Hyrniak v. Mauldin 2014 SCC 7 that timeliness, affordability and proportionality are essential components of any legal system that seeks to provide true access to justice. Affordability and proportionality require that lawyers budget their time. The expenditure of a disproportionate amount of docketed time will not be sanctioned by the court. Karkulowski v Karkulowski 2015 ONSC 3171, 2015 ONSC 3171 (SCJ); Jackson v Mayerle (supra).
[63] Simplistically, a common theme in the “reasonable expectations” and “proportionality” analyses is that the loser should not have to reimburse the winner for excessive or unnecessarily expensive litigation behaviour which might be regarded as “overkill”. Scipione v. Scipione (supra).
OTHER CONSIDERATIONS
[64] In determining the issue of costs, I have considered additional factors, some of which were raised in the parties written submissions, including:
a. The child-related issues herein were extremely important. The French language school issue involved some detailed legal analysis. (Rule 24(11)(a).
b. The hourly rate charged by the Applicant’s counsel is reasonable. (Rule 24(11)(c)). Although the time spent could have been more precisely set out on the bill of costs, the overall numbers appear reasonable, given the length of the trial and the skill with which Mr. Clarke presented his case. (Rule 24(11)(d).
[65] Rule 24(11)(f) directs the court to consider any other relevant matter. This includes the aforementioned considerations of reasonable expectations and proportionality. As well, a court must consider a party’s ability to pay costs. MacDonald v. Magel (supra); Biant v. Sagoo (supra).
a. The impact of legal fees on a successful custodial parent’s ability to provide for a child must also be considered. A large costs order against an unsuccessful party may affect their ability to provide for a child in their care. But inadequate reimbursement for costs may similarly impoverish a child residing in the successful party’s household. Jackson v Mayerle (supra).
b. The Respondent earns more than twice as much as the Applicant. He seeks consideration for the fact that he spent more than $39,000.00 on his own legal fees. I would have thought that for that amount of money, someone would have explained to the Respondent that it was unfair and irresponsible for him to so aggressively pursue such a poorly thought-out case.
[66] In all the circumstances, balancing the above noted factors and focussing on fairness and proportionality, the Respondent shall pay to the Applicant costs fixed in the sum of $32,000.00 inclusive of HST and disbursements.
Pazaratz, J.
Released: October 12, 2016
CITATION: Chomos v. Hamilton, 2016 ONSC 6232
COURT FILE NO.: F1817/13
DATE: 2016-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tracey Chomos
Applicant
- and -
Selwyn Hamilton
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: October 12, 2016