CITATION: Genga v. Colaianni, 2017 ONSC 4709
NEWMARKET COURT FILE NO.: FC-08-29261-0001
DATE: 20170803
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL ALBERT GENGA
Applicant
– and –
JACQUELINE COLAIANNI
Respondent
The Applicant, Self-Represented
The Respondent, Self-Represented
HEARD: May 15 and 16, 2017
RULING ON COSTS
DOUGLAS J.
[1] This is my ruling on costs following trial of the parties’ respective Motions to Change child support. I released my Reasons for Decision following trial on June 13, 2017 and invited written submissions on costs.
[2] I subsequently released corrigenda on issues identified by the parties following release of my Reasons for Decision.
[3] I have now received and reviewed the parties’ written submissions on costs.
[4] There can be no doubting that the Applicant father was the successful party. I found in his favour on the majority of the issues raised.
[5] I treat the issue of a change in spousal support as neutral as that is something that the pleadings did not identify as an issue and regarding which I granted the requests of the Applicant (without opposition from the Respondent who benefitted from the increase in spousal support ordered).
[6] The Applicant father submits a calculation of costs totalling $6,714.63, broken down as follows:
(a) Time spent in preparation: 80 hours at $61.14 per hour = $4,891.20;
(b) Disbursements for photocopying, Canada Post and process serving: $478.35;
(c) Time spent in court: 22 hours at $61.14 per hour = $1,345.08 should result in total of $6,714.63.
[7] The hourly rate claimed by the Applicant father is consistent with his employment in a management position with the TD Bank.
[8] The Respondent appears in her submissions to concede the Applicant’s success but makes the following primary submissions:
(a) A cost award may not be fair or reasonable given that neither party was represented by counsel.
(b) Most of the issues were settled prior to trial including some favourable to the Respondent. Costs related to efforts regarding the settled issues should not form part of the costs of trial.
(c) The Respondent conducted herself reasonably, making the only valid Rule 18 Offer to Settle.
(d) While the case was important to both parties, it was not complex or difficult.
(e) The costs sought by the Applicant are inflated and do not reflect actual costs.
(f) The Applicant conducted himself in bad faith by not being prepared to discuss resolution at the DRO conference and by bringing a motion to strike that was dismissed. Further, it is submitted the Applicant has acted in bad faith regarding the position that he is taking with respect to s. 7 expenses.
(g) It is unfair and unreasonable to claim costs that would ordinarily not be recoverable by a represented party.
(h) The Respondent too has taken time off work to represent herself in court.
(i) While the Respondent has not delivered a Bill of Costs she has submittrd an invoice from her accountant in the amount of $819.25 regarding compiling historical tax information of Simona, an analysis of tuition fee transfers and preparation of an affidavit. She also submits a summary from York Catholic District School Board of days that she took off as personal days relating to trial preparation, pretrial attendances and so on in relation to this litigation. The summary suggests eight days total equating with $2,496 in income.
Offers to Settle
[9] Neither party has served an Offer to Settle within the strict definition thereof pursuant to Rule 18 in that there are no offers signed by both the party and counsel. Neither party has had counsel in the proceedings before me; however, the parties have served offers signed by themselves.
[10] The Applicant’s Offer Dated June 28, 2016. It does not match or improve upon my disposition.
[11] The Applicant served an offer dated August 9, 2016. I find that this offer does trigger potential cost consequences as the Respondent’s position would have been improved (comparing the terms of my judgment with the terms of the Offer to Settle) had she accepted it.
[12] The Respondent’s offers of May 8, 2017, November 2, 2016 and July 4, 2016 do not trigger cost consequences.
Costs Claimed by Unrepresented Litigants
[13] Self-represented litigants are entitled to costs in proceedings “calculated on the same basis as those of the litigant who retains counsel”. The basis for assessment of costs of a self-represented person is the “loss of time through their involvement in the legal process”. The allowance for time should be “moderate” or “reasonable” but should not be anything more than the “time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation. [^1]
[14] The claim by a self-represented litigant would be for work “otherwise done by counsel or that she may have been charged for had she been represented”. [^2]
[15] An important threshold consideration is the appropriate level of indemnification, assessed by reference to degree of success and reasonableness of each party’s litigation behaviour.[^3]
[16] An unrepresented litigant’s hourly rate is one of several factors that may be considered in assessing costs. [^4]
[17] The income that a self-represented litigant could or would have earned outside of court, at the same time not been spent doing the work that a lawyer would normally do, is a factor to be taken into account in assessing the value of that time to that litigant. This is a factor that must be considered, in some circumstances, in order to render the litigant’s compensation and costs meaningful and therefore preserve the value of the process to that litigant, and therefore that litigant’s access to justice.[^5]
Rule 24 Factors
[18] The issues addressed were important to the parties but not complex nor difficult.
[19] Although unsuccessful, there is no basis on which to conclude that the Respondent conducted herself unreasonably. Similarly, although the Respondent advances allegations of bad faith on the part of the Applicant, in my view, the conduct complained of falls far short of the high threshold to constitute “bad faith” within the meaning of the Family Law Rules.
[20] The Applicant’s claimed hourly rate of $61.14 is not unreasonable given that it is grounded in his employment and thus there is an element of real loss to him, or any other self-represented litigant, reflected in money lost in time spent away from work to devote to attendance at court.
[21] In terms of time properly spent on the case, I consider that the Applicant’s motion to strike (to which he attributes 7.5 hours of his time) was dismissed. I also consider that some of the issues between the parties were settled and that the costs of the case conference, settlement conference and trial scheduling conference were not reserved.
[22] The expenses claimed are not unreasonable.
Conclusion and Order
[23] Ultimately, the objective is an award of costs that is fair and reasonable from their perspective of the reasonable unsuccessful litigant.
[24] In all the circumstances considered above, I award costs to the Applicant fixed in the amount of $3,000, payable at the rate of at least $150 per month commencing September 1, 2017.
DOUGLAS J.
Released: August 3, 2017
[^1]: Fong v. Chan 1999 CanLII 2052 (ON CA), [1999] OJ No. 4600 (CA)
[^2]: Jordan v. Stewart 2013, ONSC 5037
[^3]: Witter v. Gong [2016] OJ No. 6333
[^4]: Cassidy v. Cassidy 2011 ONSC 791, [2011] OJ No. 1053
[^5]: Cassidy v. Cassidy 2011 ONSC 791, [2011] OJ No. 1053