Court File and Parties

COURT FILE NO: FC-02-862-3 DATE: 2017/02/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bertrand Pitre, Applicant AND Carol Lalande, Respondent

BEFORE: Madam Justice S. Corthorn

COUNSEL: Kevin Kavanagh, for the Applicant Carol J. Craig, for the Respondent

HEARD: Written Submissions

RULING AS TO Costs

CORTHORN J.

[1] I have reviewed the costs submissions delivered in follow up to my endorsement dated January 11, 2017 (the “Endorsement”). The costs submissions relate to a motion, argued over 1.5 days. The motion, although titled a ‘Motion to Change’ was, as described in the Endorsement, a motion to enforce the terms of an order made in 2008 by the late Justice Polowin (the “Order”).

[2] The motion was brought by the respondent. She seeks her costs of the motion on a full recovery basis. The request for costs on a full recovery basis is premised on the following submissions:

a) The respondent was “almost entirely the successful party”;

b) The respondent acted reasonably at all times and offered to settle on fair terms; and

c) The applicant avoided his obligations pursuant to the Order, was unreasonable in his settlement position, and essentially left the respondent with no alternative but to pursue the motion.

[3] I find that the respondent’s characterization of her degree of success on the motion to be an over-statement. I agree with the applicant’s description of the respondent as the “more successful party” on the motion.

[4] With respect to the offers to settle exchanged, in my view the overall result on the motion falls approximately mid-way between the applicant’s final offer and the respondent’s various offers. Pursuant to the Endorsement, the applicant is to pay the respondent approximately $38,575. The applicant’s final offer was in the amount of $20,000. The respondent’s offers were consistently in excess of $60,000. The end result is closer to the applicant’s final offer than it is to either of the respondent’s offers.

[5] I find that the cost consequences provided for in rule 18(14) of the Family Law Rules (“FLR”) are not triggered by the respondent’s offers. I am, however, entitled to consider the offers made (rule 18(16) of the FLR). I find that the offers made by the parties do not support an award of costs on a full recovery basis.

[6] The general principles governing both liability for and the amount awarded for costs are set out in Rules 18 and 24 of the FLR. As was noted by Pazaratz J. in Chomos v. Hamilton [^1], those two rules and the relevant case law focus on “success” and “reasonableness”. [^2]

Success

[7] I have already addressed the respondent’s success on the motion in a general way. There is no doubt that the respondent was successful on the majority of the issues determined on the motion. However, she was not successful on the issue of medical and dental expenses incurred for the children.

[8] I emphasize the respondent’s lack of success on that issue for the following reasons:

• The monetary amount associated with that issue was relatively small in comparison to the amounts involved with respect to child support and post-secondary education expenses.
• The issue required detailed evidence with respect to each expense; submissions made to each of the parties’ benefits insurers; reimbursement, if any, received by either party from their respective benefits insurer; and communication between the parties over time with respect to the expenses.
• I found that the respondent failed to follow the terms of the Order with respect to reimbursement of expenses.
• Argument with respect to the expenses consumed an amount of hearing time that was disproportionate to the amount involved.

[9] In the end the Endorsement did not include a determination of the monetary amount involved with respect to medical and dental expenses. I ordered the parties to deal with the issue further between themselves and make further submissions on the issue only in the event they are unable to resolve the expenses themselves.

[10] I find that the respondent’s approach to the issue of medical and dental expenses was dogmatic. That approach resulted in an unwarranted increase in time and resources devoted to the issue.

[11] The respondent’s conduct in that regard is therefore balanced against her status as “the more successful party”.

Importance, Complexity or Difficulty of the Issues

[12] I accept that the issues on which the respondent was successful were important to her from a financial perspective. She invested a significant amount of personal resources in the post-secondary education of both children. She did so with minimal assistance and cooperation from the applicant.

[13] I find that the motion was made unnecessarily complex by reason of the applicant’s position on the issue of retroactive support for the party’s oldest child, Catherine. The respondent’s materials did not deal with that legal argument in detail. However, oral argument on the issues consumed a significant portion of the 1.5 days of hearing time. Counsel for the respondent was required to address the issue in some detail in oral argument. Counsel for the applicant devoted a significant amount of his time in oral argument to the issue.

Unreasonable Behaviour/Bad Faith

[14] In the Endorsement I found that each of the parties failed to follow the terms of the Order. The applicant failed to fulfill his disclosure and support obligations. The respondent failed to follow the terms of the Order related to recovery of medical and dental expenses.

[15] I do not, however, put their respective failures on equal footing. I found that the applicant’s avoidance of his obligations with respect to post-secondary education amounts to “obfuscation and was deliberate”.

[16] In all of the circumstances, I find that the applicant’s conduct in that regard specifically and his conduct more generally does not amount to “bad faith” within the meaning of rule 24(8) of the FLR. [^3]

Costs

a) Scale

[17] For the reasons set out above, the request for costs on a full recovery basis is denied. I award costs to the respondent on a substantial indemnity basis.

b) Quantum

[18] The respondent’s costs on a substantial indemnity basis are submitted to be $38,745 [^4] (rounded figure). The applicant does not challenge the hourly rates upon which the fee portion of the respondent’s costs are based or the time expended.

[19] The applicant submits that some of the disbursement items claimed are not reasonable:

a) An investigator for surveillance ($1,600);

b) A process server who was unable to affect service (incl. in $1,600 above); and

c) The accountant (Mr. Desnoyers) retained to address the calculation of the applicant’s annual income from 2008 to 2015 ($4,250)

[20] The substantial indemnity fees claimed total $26,750. For the following reasons, I find that the fees claimed are slightly excessive and warrant reduction:

• They include fees charged for work done by an assistant ($450). Those fees may form part of a solicitor-client agreement or retainer. In my view, they are not properly part of costs payable by an opposing party;
• They include “correspondence with client”, without any confirmation that said correspondence is related exclusively to the motion.

[21] Taking into consideration the two factors listed immediately above and the respondent’s approach to and lack of success on the issue of medical and dental expenses, I fix the respondent’s substantial indemnity fees in the amount of $17,000.

[22] With respect to the disbursements, I find that all of the items claimed are reasonable with the exception of the investigator. I reduce the expense for that item by 50 per cent from $1,600 to $800.

[23] I find the expense incurred for the report of Mr. Desnoyers to be reasonable. I preferred the opinion/approach of the applicant’s expert over that of Mr. Desnoyers. However, it was reasonable for the respondent to retain an expert to address the issue of the applicant’s annual income over a seven-year period. The applicant’s income was relevant to the issue of child support, which was significant in terms of its importance to the respondent and its proportionate share of the overall amount in issue on the motion.

Summary

[24] In all of the circumstances, taking into consideration the factors discussed above, and addressing fairness and proportionality, I fix the respondent’s costs on a substantial indemnity basis as follows:

Fees $ 17,000.00 HST on fees $ 2,210.00 Disbursements $ 6,630.00 [^5] $ 25,840.00

[25] The applicant shall pay to the respondent her costs, on a substantial indemnity basis in the amount of $25,840.

Madam Justice Sylvia Corthorn Date: February 13th, 2017

[^1]: 2016 ONSC 6232; 2016 CarswellOnt 15962. [^2]: Chomos, at para. 9. [^3]: See Chomos, at para. 44; and Veneris v. Veneris, 2015 ONCJ 175, at para. 20. [^4]: The disbursements total $7,236.42 (incl. HST). The balance is for fees and HST on fees. [^5]: This figure includes HST. $6,630 = $7,236.42 – ($800 x 1.13).