Citation: Miller v. Young, 2016 ONSC 6577

COURT FILE NO.: F1461/15

DATE: October 26, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Darrin Miller, applicant

AND:

Katrina Rebecca Young, respondent

BEFORE: MITROW J.

COUNSEL: Robert Haas for the applicant

Brenda D. Barr for the respondent

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] Pursuant to my order dated July 8, 2016 dealing with interim custody/access, interim child support and interim spousal support, counsel have forwarded written submissions on the costs of the motions. I have reviewed the respondent’s costs submissions, the applicant’s responding submissions and the respondent’s reply, the latter having been received August 10, 2016.

[2] The respondent seeks costs of $13,000 all inclusive, being a reduction from the respondent’s legal accounts (filed with her costs submissions) totalling $24,928 inclusive of fees, disbursements and HST. The reduction in fees to $13,000 is explained by the respondent, in part, as a response to para. 5 of my endorsement that stated, in part: “The affidavit material filed on the motion was voluminous – and unnecessarily so.”

[3] The applicant characterizes the almost $25,000 incurred by the respondent as follows: “With respect, the amount claimed ($25,000) is outrageous.”

[4] The applicant submits that no costs should be ordered; he relies on divided success, the respondent’s unreasonable behaviour and the applicant’s success on a motion to strike.

[5] For her part, the respondent submits that the applicant has behaved unreasonably because: his R. 18 offer to settle was made on the morning of a special appointment date set to hear the motions; it was unreasonable for the respondent to argue that the “nesting order” should continue; and that the applicant’s second motion to strike was unreasonable and a waste of the court’s time.

[6] I find that the respondent is presumptively entitled to costs; although there was some divided success, the respondent was more successful than the applicant, including the award of interim custody of both children in her favour and permitting the respondent to live with the children in Strathroy rather than having to remain in Dorchester as argued by the applicant; further, the respondent requested and was awarded interim child support and interim spousal support and income was not imputed to the respondent as was requested by the applicant. The main area where the applicant was more successful was the award of interim access that included overnights, despite the respondent’s position that the applicant’s access should not include overnights.

[7] The main issue that dominated the affidavit material, the facta and the submissions during argument related to the issue of interim custody/interim access and whether the respondent could live with the children in Strathroy.

[8] In considering the factors listed in r. 24(11), I dispose of the non-contentious matters first. This was a matter that clearly was important; there was some element of complexity and difficulty; as to the lawyers’ rates, the hourly rates of $420 and $170 for Ms. Barr and her associate, Ms. Lubrick, are reasonable; there is no issue taken with the disbursements claimed by the respondent.

[9] The applicant did not submit any account or bill of costs for his lawyer; hence it is not possible to apply the factors in subrules 24(11)(c), (d) and (e) with any specificity as to any legal costs incurred by the applicant. Indeed the respondent complains about this issue in her reply. The respondent relies on Risorto v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 (S.C.J.) at para. 10, quoted with approval in Ganie v. Ganie, 2016 ONSC 1831 (S.C.J.) at para. 33. The respondent relies on these cases in support of her argument that the applicant’s attack on the respondent’s costs as excessive is no more than “an attack in the air” given the applicant’s failure to submit his counsel’s time dockets and/or accounts. This submission flows from Risorto, supra, where Winkler J. (as he then was) stated at para. 10:

10 The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air. I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under r. 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and "unwarranted over-lawyering" are made. In that regard, the court is also entitled to consider "any other matter relevant to the question of costs". (See r. 57.01(1)(i)). In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter.

[10] The respondent submits, in relying on the above authorities, that because the applicant failed to provide his counsel’s bill of costs or time dockets, that there is no evidence to support his assertion that the respondent’s costs were “outrageous.” I am unable to accept that submission. The prevailing authority, not cited by the applicant, is the decision of the Court of Appeal for Ontario in Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.), where it was held that there is no requirement for a losing party to file a bill of costs, although that could be a factor to be taken into account.

[11] In Furtney v. Furtney, 2014 ONSC 7259 (S.C.J.), a case that came before me, it was argued that a lawyer who alleges that too much time was spent by the opposing counsel is required to furnish his or her own dockets. In Furtney, I stated as follows at paras. 15-17:

[15] I disagree with the applicant’s submission that there was an obligation on the respondent to file her bill of costs. Further, the cases relied on by the applicant must be read subject to a case, on point, decided by the Court of Appeal for Ontario and which was not referred to in the applicant’s submissions: Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.). In Smith Estate, the motion judge had allowed over $700,000 in costs to the successful party. The quantum of costs claimed by the winning party was hotly contested before the motion judge. In arriving at the costs decision, the motion judge placed significant emphasis on the failure of the losing party to file her bill of costs and, as a consequence, the motion judge placed “little weight” on the losing party’s detailed critique of the bill of costs.

[16] The Court of Appeal for Ontario found that the motion judge, in effect, rejected an argument based on the analysis of the evidence and billing rates because the appellant (the losing party) had failed to file her own bill of costs, which she is not required to do (para. 52). The motion judge’s approach was found to constitute reversible error (para. 56).

[17] In Smith Estate, the court discussed the effect of a losing party not filing a bill of costs as follows at para. 50:

50 In my view, there is no requirement for the losing party, who is not seeking costs, to file a bill of costs although it is preferable that he or she does so. However, if the losing party chooses not to file a bill of costs, this is a factor that the judge, who is assessing costs, may take into account when considering the reasonable expectations of the losing party.

[12] In the case at bar, the fact that the applicant’s counsel did not file a bill of costs or time dockets is only one factor to consider; it does not prevent an analysis as to the reasonable amount of costs to be paid by the applicant, including the reasonable expectation of the applicant when assessing costs.

[13] It is noteworthy that Ms. Barr is the respondent’s third counsel, having assumed carriage of the file via a notice of change in representation signed February 16, 2016.

[14] This court case was precipitated, in the first instance, by the respondent’s unilateral removal of both children from the parties’ home in November 2015. The applicant then commenced this proceeding and brought an emergency motion; the respondent, in turn, brought her own emergency motion.

[15] The motions led to the interim order of Jarvis J. dated December 2, 2015, on a without prejudice basis, that provided for a “nesting order” with the parents spending equal time with the children and with the children remaining in the family residence, while the parents rotated in and out of the home.

[16] Although Jarvis J.’s order reserved costs to the judge hearing the motions, I am not in a position to quantify those costs because neither party has provided any time dockets or bills of costs or any submission as to quantum of costs.

[17] It should be noted that the respondent’s legal bill of just under $25,000 only includes accounts from Ms. Barr’s office; the first entry for billable time is shown to be on March 9, 2016.

[18] Notwithstanding that the order of Jarvis J. was made on consent, I do find that the applicant did achieve an important measure of success because the children were ordered returned to their home. Of more significance, however, is the conduct of the respondent; it was patently improper for the respondent to resort to self-help. I find this behaviour to be unreasonable, falling within the upper range of unreasonableness.

[19] I turn now to the affidavit material. Starting from the first emergency motion, there were 23 or so affidavits filed, not including financial statements and form 35.1 affidavits. Approximately two-thirds of these affidavits were filed on behalf of the respondent.

[20] Given that Ms. Barr had not prepared the material that had been filed previously, I did allow, over Mr. Haas’ objection, for the respondent to file new material, including any new motion for the special appointment; also, timelines were set for the applicant to file responding material to respond to any new material, and then for any reply.

[21] The applicant complains that the respondent used this order, in effect, to start at the beginning, with the result that the applicant was forced to incur legal fees, unnecessarily, to respond to a case that, at least in part, had already been responded to.

[22] I find there is merit to the applicant’s submission.

[23] The opening salvo of the new material was a 199 paragraph single-spaced affidavit, together with 13 exhibits from the respondent, accompanied by 5 further affidavits on behalf of the respondent from other deponents. To put some context to this, the applicant, in his initial emergency motion, filed one affidavit (his own) and received in response six affidavits filed on behalf of the respondent.

[24] I find that the respondent’s material, in particular her 199 paragraph affidavit, is prolix to an extreme degree; it deals with many historical and other facts that have little relevance or probative value to the issues before the court. Excessively lengthy affidavits of this nature do not assist the court. Litigants must be cognizant of this: a judge must read their material – all the material; it is not an option to omit reading portions of voluminous affidavit material because of the danger that some relevant facts may be lurking deep within the material.

[25] Rule 14(18) states:

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

[26] Taking one example, the affidavit of Shawn Young, the respondent’s brother, sworn March 28, 2016, represents a rather extreme violation of r. 14(18). Almost entirely, Mr. Young’s affidavit is nothing but a repetition of what the respondent told him about the applicant’s alleged conduct, none of it witnessed by Mr. Young, although he is quick to tell the court that he “verily believes” true everything that his sister told him.

[27] Most, if not all, of the matters described by Mr. Young in his aforementioned affidavit, were dealt with already by the respondent in her affidavits, further rendering Mr. Young’s affidavit to be of little or no probative value.

[28] The problem, on motions, that contain irrelevant, prolix and unnecessarily voluminous material, is that it in turn triggers a response from the opposing party who fears remaining silent, with the inevitable result that the court is confronted with more irrelevant material – an affiant who responds to irrelevant material creates more irrelevant material.

[29] The legal bills filed with the respondent’s material show that, since early March 2016, that 86.7 hours were spent by counsel (28.2 hours by Ms. Barr and 58.5 hours by Ms. Lubrick); most of this time is for preparation of affidavit material and the factum; however, it was Ms. Barr, as senior counsel, who prepared for and attended in court.

[30] When a court is determining costs, the overriding principle is reasonableness; the amount awarded must be fair and reasonable for the unsuccessful party to pay. The following is stated by the Court of Appeal for Ontario in Davis v. Clarington (Municipality), 2009 ONCA 722 (C.A.) at para. 52:

52 As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[31] In the case at bar, it would be unreasonable to assess what the applicant should pay in costs based on the time spent by the respondent’s lawyers.

[32] I do take into account that the respondent has requested $13,000 in costs, whereas her actual costs are just under $25,000; however, I reject that $25,000 is a proper starting point to determine costs payable by the applicant.

[33] While it was open to the respondent to incur $25,000 in fees, the analysis as to what the losing party (the applicant) should pay is subject to the overriding principle of reasonableness, which includes the reasonable expectations of the losing party.

[34] An order of Desotti J. dated April 13, 2016 resulted in an exhibit to the respondent’s answer and portions of five affidavits filed on behalf of the respondent being struck. This order related to affidavits filed in late November 2015. The costs of this motion were reserved to the judge hearing the special appointment. The respondent noted that this order was on consent and that not all of the material mentioned in the applicant’s motion was struck. While I am unable to quantify the costs of this motion because no submissions were made as to the time spent, I regard this as an example of unreasonable conduct by the respondent.

[35] On April 7, 2016, the applicant’s second motion to strike some further material recently filed came before me. Mr. Haas did submit that my previous order dated March 15, 2016, allowing the respondent to file new material, created a change in the usual order of filing motion material as set out in r. 14(20). My endorsement, in part, acknowledged the effect of my order on the usual sequence of filing affidavit material, and that the concerns raised by Mr. Haas can, at the appropriate time, be dealt with when costs are considered. The result was that the applicant’s motion was dismissed with costs reserved to the motions judge.

[36] In relation to this second motion to strike, the respondent submits that she was the successful party as this motion was dismissed. It is noteworthy that some of the respondent’s material sought to be struck included the affidavit of the respondent’s brother, Shawn Young, referred to earlier in these reasons. Part of the grounds to strike, referred to in the motion, was that the material was a breach of r. 14(20). The brief affidavit in support of this motion to strike complained about the impropriety of the 199 paragraph single-spaced affidavit filed by the respondent, characterizing this affidavit as a redraft of the respondent’s original material. No submissions by either party were made as to the quantum of costs that should be awarded for this motion to strike. In all the circumstances, regarding this specific motion, each party shall bear his or her own costs.

[37] In relation to the nature of the material filed by the respondent as discussed above, I do wish to make clear that the responsibility for the material rests squarely with the respondent; the totality of the evidentiary record suggests that the respondent was quite incapable of exhibiting any self-control as to what she wanted to tell the court – that she was consumed with including a litany of facts which had marginal probative value or relevance. Counsel take their instructions from their clients; the respondent’s unreasonable behaviour in flooding the applicant with affidavit material of the nature described will not be rewarded when costs are determined.

[38] Each party filed an offer; clearly the respondent’s offer was much closer to the order made. The respondent’s offer was reasonable. However, neither party’s offer engaged the automatic cost consequences of r. 18(14), in particular paragraph 5.

[39] There is no dispute by the applicant with the respondent’s submission that his offer was served on the morning of the date set for the hearing of the special appointment motion. Given the numerous issues in dispute, and the high-conflict aspect of this case, I agree with the respondent that it was unreasonable for the applicant to serve his offer so late.

[40] I reject the respondent’s submissions as to other alleged instances of the applicant acting unreasonably. I find that the respondent’s unreasonable conduct far outweighed the applicant’s failure to serve a more timely offer.

[41] In fixing costs, I take into consideration, among other factors, that there was some divided success; further, this is a proper case, pursuant to r. 24(4), to reduce the costs that the respondent otherwise may have been entitled to based on the respondent’s unreasonable conduct as described above.

[42] I find that a costs award of $4,000, inclusive of assessable disbursements and HST, to be paid by the applicant to the respondent is reasonable.

[43] Further, this costs payment of $4,000 is not due and payable by the applicant until such time as all issues in this proceeding have been dealt with on a final basis.

[44] An order shall issue accordingly.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: October 26, 2016