Court File and Parties

COURT FILE NO.: FC-08-73-2 DATE: 2016/10/06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: XinJan (Joan) Jiang Applicant – and – Eric Parham Respondent

COUNSEL: Tanya Davies, for the Applicant Elisabeth Amy Sheppard, for the Respondent

HEARD: In writing

Cost Endorsement

Overview

[1] The parties appeared before me on August 10, 2016 with two competing motions seeking temporary relief. The Applicant (“mother”) sought the suspension of the Respondent’s (“father”) access rights unless it was supervised in a professional setting while the father sought to enforce his existing access rights.

[2] On August 19, 2016, I suspended the father’s access rights set out in the final order of Justice Sheffield dated July 2, 2015, and on an interim without prejudice basis, granted the father access to the child every second Saturday and every second Sunday for two hours with said access to be supervised at the supervised access centre of the Family Services of Ottawa (FSO) or at the Separation and Divorce Research Centre or as the parties may agree and that the father was to be responsible for the costs for such supervision.

[3] On the issue of costs, I requested the parties’ submissions which I have received.

[4] In this decision, I will be considering the costs related to the case conference before the Master on July 5, 2016, as the costs of that conference were reserved to the motions judge.

Mother’s Position

[5] The mother submits she was completely successful at the motion as she succeeded in having the father’s access supervised in a professional setting while the father’s request to have access as per the judgment of Justice Sheffield was denied.

[6] The mother was previously represented by Ms. Jean O’Neill. Two of her accounts were submitted for my consideration. The first account dated June 17, 2016 included legal fees of $1,418.88. The second account dated July 27, 2016 included legal fees of $1,937.32.

[7] Ms. Davies provided me with two accounts being August 8, 2016 with legal fees in the amount of $1,995.00, and a second account being August 22, 2016 for legal fees in the amount of $1,995.00.

[8] The mother seeks costs on a full indemnity basis. She seeks $3,000.00 for costs at the case conference and $4,520.00 for her costs for the motion on August 10, 2016.

Father’s Position

[9] The father submits that one of the issues at the case conference in July 5, 2016 was that the parties could not agree on the appointment of the Office of the Children’s Lawyer (“OCL”) or on access. The Master granted the parties leave to bring a motion on the issue of access and for the appointment of the OCL.

[10] After the case conference, unbeknown to the father, the mother filed her intake form with the OCL. As there was no order taken out at the case conference, counsel for the father attended a procedural court date and obtained the order appointing the OCL.

[11] On the issue of access, the father submits that he succeeded in obtaining access to his daughter. Further, he submits that the mother’s position, until a few days before the motion, was that the father’s access would be terminated and he would not have any access.

[12] The father submitted an offer dated July 25, 2016 to settle all issues including a provision that his pickup and drop off for access would be at the FSO Centre in Ottawa with no mention of supervision. The father submitted a second offer on August 2, 2016 expanding on his previous offer but making no mention of supervision.

[13] The father has filed two legal invoices for fees: one filed July 5, 2016 for $6,682.50; and a second one filed September 15, 2016 in the amount of $5,917.50. There is no information as to when or what services were performed to arrive at the figure for these legal fees. There is no breakdown of the legal fees and/or disbursements provided to me. The father seeks $8,000.00 in costs.

Legal Principles

[14] In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, the Court held that family law costs rules are designed to foster three important principles:

(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

[15] In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), the Court held that the court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

[16] Parts of Rule 24 of the Family Law Rules, O. Reg. 114/99 are applicable in this matter:

(a) Under rule 24(1) there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. (b) Despite rule 24(4), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs in order to pay all or part of the unsuccessful party’s costs. (c) Rule 24(5) states that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (i) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (ii) the reasonableness of any offer the party made; and (iii) any offer the party withdrew or failed to accept. (d) Rule 24(6) states that if success in a step in a case is divided, the court may apportion costs as appropriate. (e) Rule 24(10) states that costs are to be decided promptly at each step of the case by the judge or person who dealt with that step in a summary manner as to who is entitled to costs and to set the amount of costs. (g) Rule 24(11) states that a person setting the amount of costs shall consider: (i) the importance, complexity or difficulty of the issues; (ii) the reasonableness or unreasonableness of each party’s behaviour in the case; (iii) the lawyer’s rates; (iv) 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 order; (v) expenses properly paid or payable; and (vi) any other relevant matter.

Analysis

[17] The first part of the analysis is to determine which party was successful. I find that the mother was successful in obtaining supervised access at the father’s expense. I also find the father was successful in the appointment of the OCL.

[18] Despite stating in my endorsement that I requested that the parties provide their bill of costs with their submissions, neither party did; but both counsel provided me with copies of accounts submitted to the respective clients. The bill of costs is important in assessing costs because it provides a detailed breakdown of the date and time of the services.

[19] I proceeded to review the accounts submitted. With respect to the legal fees incurred for the case conference and in reviewing the accounts for Ms. O’Neill from June 17 to July 5, 2016, I can identify approximately 6.5 hours related to the case conference. Her hourly rate appears to be $136.43. The sum of $886.79 would be complete indemnity to the mother for costs of the case conference.

[20] With respect to the legal fees incurred by the father for the case conference, the documentation provides absolutely no information to be able to make an assessment.

[21] While I appreciate that the Master reserved the costs of the case conference to the motion judge, being me, the case conference canvassed many issues. The issues that remained outstanding after the case conference were for the appointment of the OCL and the access. Without a court order, the intake forms would have been rejected. However Therefore, I find there should be no costs awarded.

[22] With respect to the motion, the mother was completely successful. However, I find that the mother acted unreasonably in waiting until the last minute to advance the case that the father should have supervised access. I will take this factor into consideration in assessing the quantum of costs.

[23] In reviewing the accounts for Ms. Davies, the first account dealt with meeting and consulting with the client, reviewing the file, communicating with the client and opposing counsel. I do not believe it is reasonable for the father to expect to have to pay for legal fees incurred by the mother in retaining new counsel and bringing that counsel up to date as to the issues before the Court.

[24] With respect to the legal fees incurred in preparing for and attending at the motion on August 10, 2016, I have reviewed the accounts of Ms. O’Neill and cannot ascertain when she prepared the documentation and how long it took her. Without that information, I cannot assess costs and consequently, I make no order as to the costs related to Ms. O’Neill’s legal fees.

[25] With respect to Ms. Davies’ legal fees, I find that 5.65 hours was properly spent on preparing for and attending at the motion. I find Ms. Davies’ hourly rate of $300.00 an hour to be reasonable. I find that total indemnity would result in a costs award of $1,695.00 plus HST.

[26] In the circumstances, because of the late change in position by the mother, I will not grant her full indemnity costs for the motion. I will grant her partial indemnity totaling $1,400.00 including HST.

Disposition

[27] I order the father to pay to the mother the sum of $1,400.00 inclusive of HST payable within 30 days of this order.

Shelston J. Released: October 6, 2016