CITATION: Bernard v. Fuhgeh, 2017 ONSC 5432
COURT FILE NO.: FC-17-361
DATE: 20170913
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARIE MARIELLE EDITH BERNARD, Applicant
-and-
WILLIAM NDZE FUHGEH, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Marie Hélène Godbout/Marc Coderre, for the Applicant
Respondent, self-represented
HEARD: By written submissions
costs ENDORSEMENT
[1] On August 3, 2017, I released my decision in relation to a motion brought by the Respondent seeking a declaration that the relief claimed in his motion was urgent pursuant to rule 14 (4.2) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”). I concluded that the Respondent’s motion was not urgent and dismissed both his motion and the Applicant’s cross-motion.
[2] If the parties were unable to agree on the issue of costs, they were to provide me with written submissions.
[3] For the reasons set out below and after having considered the parties’ submissions, the FLRs, offers to settle and the bills of costs, the Applicant (Ms. Bernard) is awarded costs in the amount of $6,000, inclusive of disbursements and HST, payable forthwith by the Respondent (Mr. Fuhgeh).
Preliminary Comments
[4] In my written decision on the merits of the motion itself, I provided a detailed history of this proceeding, and for that reason, I will not repeated it here. However, it is important to briefly reiterate the various steps that the parties went through before ultimately appearing before me on August 3, 2017, since costs for each of those steps were reserved to the judge hearing the motion.
[5] There were four court appearances in total;
• June 27, 2017: Procedural Court before Justice Trousdale
[6] The Respondent’s motion was first brought before Justice Trousdale at procedural court on June 27, 2017. He was seeking protective orders with regards to his claimed interest in the Applicant’s home, in particular order to protect the net proceeds from its sale from depletion by the Applicant.
[7] At that hearing, Justice Trousdale determined that the issue of the net proceeds from the sale of the home was urgent. As the Applicant was consenting to a temporary order being made on that day with respect to the net proceeds, she made that order. The balance of the relief sought by the Respondent in his motion was adjourned to July 4, 2017 to allow the Applicant to file a responding affidavit (having been short-served with the Respondent’s motion).
• July 4, 2017: Return of the Motion
[8] Following the June 27, 2017 hearing, the Applicant filed a notice of cross-motion in which she was seeking the dismissal of the Respondent’s motion or, in the alternative, an order releasing the net proceeds from the sale of her home to her.
[9] On the date of the return of the motion, the Respondent filed an amended notice of motion in which he sought various additional temporary relief including spousal support, confirmation of his entitlement to an interest in the Applicant’s home, as well as an order striking 112 paragraphs from the Applicant’s responding affidavit and factum. This amended notice of motion was served on the Applicant the morning of the July 4 motion hearing. Justice O’Bonsawin, who was scheduled to hear the motion on that day, decided that the matters raised by the Respondent’s amended notice of motion could not be argued within the timeframe that the motion was scheduled for. In addition, she was of the view that the affidavit filed by the Respondent was not admissible in its current form. The motion was adjourned to August 1, 2017, for a three hour motion.
• August 2, 2017: Final Motion Hearing
[10] At the final motion hearing, the Respondent’s request that I strike the vast majority of the Applicant’s responding affidavit and factum was dismissed. I also rejected the Respondent’s request to strike from the continuing record an affidavit filed by Mr. Sicotte, pertaining to his handling of the net proceeds from the sale of the home. I further rejected the Respondent’s request that I recuse myself from this matter based on the Respondent’s expressed concerns about my impartiality. Finally, on the issue of urgency, the main issue in this motion, I concluded:
The matter of the potential disposition of the net proceeds from the sale of the Applicant’s property was deemed urgent by Justice Trousdale. That urgency was addressed by way of a consent order made by her. I find that none of the other orders claimed by the Respondent in his original notice of motion were so urgent as to negate the legislated requirement that there be a case conference held before a motion can be brought. Further, I find that the Respondent’s claim for an order determining his entitlement to the Applicant’s property and quantifying that entitlement is a substantive matter that cannot be adjudicated upon in the context of a motion, urgent or not, unless the evidence is so compelling as to warrant the bringing of a summary judgement motion; such matters must be dealt with on their merits based on proper evidence in the context of a trial.
[11] With regards to the Applicant’s cross-motion seeking the immediate payment of the net proceeds to her, I found that such a request was not urgent either.
[12] I concluded that the Applicant was “clearly the successful party” in this motion and invited the parties to make submissions on the issue of costs.
Applicant’s Position
[13] The Applicant agrees that she was clearly the successful party in this case. She submits that the Respondent’s behaviour in the context of this motion resulted in increased costs for both parties. She claims that the two prior adjournments were caused strictly by the Respondent’s noncompliance with the rules, that a multitude of procedural hurdles have been continuously raised by the Respondent to delay the proper adjudication of both parties’ issues, that the Respondent filed lengthy and not entirely relevant evidence before the Court, and that the Respondent wasted the Court’s time in arguing issues other than urgency (such as striking 112 paragraphs of the Applicant’s affidavit, striking Mr. Sicotte’s affidavit, debating with the Court the correctness of its directions, asking for a recusal, etc.).
[14] The Applicant seeks an award of costs in her favour in the amount of $8,500 including of disbursements and HST.
Respondent’s Position
[15] The Respondent takes the position that his urgent motion to protect his interest in the net proceeds from the sale of the Applicant’s home was made necessary as a result of the Applicant’s secretive sale of the home, which he only found out about on June 19, a few days before the closing. He states that he was required to take protective measures as the Applicant was refusing to disclose the sale price and other relevant documents pertaining to the sale, and to agree to share those proceeds with him. He takes the position that he was successful on June 27 in preventing the Applicant from depleting the net proceeds.
[16] The Respondent also questions my conclusion to the effect that the Applicant was “clearly successful” in this motion. He says that, since he was seeking a pay-out of $30,000 out of the $70,000 net proceeds, and the Applicant was seeking an order that all of the net proceeds ($70,000) be paid to her, the Applicant lost more than he did in the motion and thus, she was “more unsuccessful” than he was.
[17] It is also the Respondent’s position that he was willing, able and ready to proceed with his motion on July 4, and that it had to be adjourned because of the Court’s scheduling error (having only scheduled 40 minutes for the motion), not because of his improper affidavit and\or late service as alleged by the Applicant.
[18] The balance of the Respondent’s submissions on costs focuses on the numerous errors that the Respondent alleges to have been made by myself in the context of the motion, and I will not repeat them here as they are not relevant to the issue of costs.
[19] In the end, the Respondent submits that he is entitled to costs, but that no cost should ultimately be ordered in this motion. In the alternative, he takes the position that the cost award sought by the Applicant is unreasonable, unfair and contrary to the “Boucher principles.”
The Applicable Legal Principles
[20] Rule 24(10) of the FLRs mandates the Court to determine costs after each step.
[21] The family law 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. See Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40.
[22] Under rule 24 (1) of the FLRs, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[23] Rule 24(11) of the FLRs outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[24] 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. Witter v. Gong, 2016 ONCJ 722.
[25] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably, the Court shall examine:
a. The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
b. The reasonableness of any offer the party made; and
c. Any offer the party withdrew or failed to accept.
[26] Offers to settle are the yardstick with which to measure success and are significant both in considering liability and quantum as set out in Osmar v. Osmar (2000), 2000 CanLII 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).
Analysis
[27] I will only discuss those factors which, in my view, are most relevant to the issue of costs in this particular case.
Success
[28] I am of the view that it was reasonable for the Respondent to bring an urgent motion to secure the net proceeds from the sale of the Applicant’s home, which was being sold imminently. I also find that the Respondent was successful when he appeared in front of Justice Trousdale on June 27, as he obtained an interim order that the net proceeds be held in trust pending the final determination of his claims towards the home.
[29] Once the Applicant consented to the proceeds being held in trust pending further order of the Court, that urgent issue was satisfactorily addressed on a temporary, without prejudice basis.
[30] For the purpose of that first hearing, I find that the Respondent was the successful party. He is therefore entitled to costs on a partial indemnity basis for that court appearance.
[31] Once the net proceeds were secured, there was no further emergency to be addressed by the Court before a case conference had taken place. The balance of the Respondent’s claims, including the additional ones brought before the Court by way of his amended notice of motion, were found not to be urgent. I find that the Applicant was the successful party for the balance of the steps taken after the June 27 hearing and therefore, is presumed entitled to her cost for those steps.
Reasonableness of each party’s behaviour
[32] I find that the July 4 hearing had to be adjourned for three reasons: 1- the Respondent served his amended notice of motion (seeking additional substantive relief) and supporting affidavit at the last possible opportunity (the morning of July 4), thus making it impossible for the Applicant to properly prepare and respond, 2- the Respondent’s added claims for relief made it impossible for the Court to deal with the matter within the timeframe initially allocated for the motion (40 minutes was reasonable given that the only remaining matters to be dealt with according to the Respondent’s initial notice of motion related to urgency and disclosure), and 3- the Respondent’s affidavit in its current form was deemed improper as it did not contain sufficient particulars (the affidavit contained 8 paragraphs and included hundreds of pages of exhibits).
[33] The Respondent asserts that Justice Trousdale gave him leave to file his motion materials as late as July 4. I have reviewed the transcript of what transpired before her (provided to me by the Respondent himself), and Justice Trousdale’s order in that regard was as follows:
The issue of whether the motion is urgent shall be adjourned to July 4, 2017 at 10 a.m. The Applicant shall serve and file responding materials by June 30, 2017 with leave for short service. The Respondent shall serve and file any reply materials by 9:45 a.m. on July 4, 2017 at court with leave for short service.
[34] Justice Trousdale did not allow the Respondent to file an amended notice of motion with additional (and substantive) claims for relief on July 4. She set forth a timeline for the filing and service of the Applicant’s response to the claims in the Respondent’s original notice of motion, and for the filing and service of what was to be the Respondent’s reply affidavit on those matters.
[35] I have also reviewed the transcript of what transpired during the hearing before Justice O’Bonsawin (also provided to me by the Respondent), which confirms my understanding of the reasons why that particular hearing had to be adjourned.
[36] I am also of the view that the Respondent’s request to strike numerous paragraphs contained in the Applicant’s affidavit and in her factum, as well as his request to strike Mr. Sicotte’s affidavit from the record (which took the vast majority of the motion hearing) were unwarranted and unnecessarily increased costs. The focus should have been on the issue of whether or not the motion was urgent, and if so, on the substantive relief claimed by the Respondent.
Offers to Settle
[37] The parties have exchanged offers to settle before appearing before me. The offers were focussed on settling the Respondent’s claim for an interest in the Applicant’s home, and disclosure. As those issues have not been determined at the motion on their merits, the provisions in those offers dealing with these issues are irrelevant to the issue of costs for this motion.
[38] Of note, however, are the provisions in those offers dealing with the issue of costs for the June 27 and July 4 court appearances. In her June 28 offer to settle, the Applicant stated “If the Respondent is not agreeable to proceed in the manner outlined in this offer to settle, the issue of the Applicant’s costs leading up to the July 4, 2017 hearing, including the costs of said day, and those of the June 27, 2017 day, inclusive of disbursements and H.S.T., shall be determined by the Court and/or reserved in the cause as per the Court’s determination of July 4, 2017.”
[39] In his July 21 and July 31 offers to settle, the Respondent offered to discontinue the motions of June 27, July 4and August 1, on a without cost basis. Although the Respondent’s offer stated that “Any part of this offer may be severed and accepted by Ms. Bernard”, it is unclear to me whether or not the Respondent’s offer to discontinue the motion was tied to his offer on the sharing of the net proceeds (whether it was a condition precedent), but I cannot assume that it was.
[40] All in all, neither party accepted the other’s offer and the parties proceeded to the third and last hearing. As a result, and given the timing of each party’s offers (June 28 for the Applicant and July 21 and 31 for the Respondent), only the actual hearing itself became an added expense to these proceedings.
The lawyer’s rates and the time properly spent on the case
[41] Counsel for the Applicant has submitted a bill of costs evidencing total legal fees charged to the client of $10,186, for a total of $11,659.52 (inclusive of disbursements and HST) for all three appearances. She charged an hourly rate of $295 on this matter to recognize her client’s ability to pay. I find this rate reasonable in light of her years of experience. Based on the total legal fees charged it would appear that roughly 34 hours were spent preparing for, and attending, three motion hearings. I find that the amount charged was reasonable in the circumstances and in light of the very lengthy affidavit materials filed by the parties before the Court.
[42] The Respondent was self-represented. He has not produced a bill of costs.
Conclusion
[43] Having considered all of the above, I order the Respondent to pay costs in the amount of $7,000 (inclusive of disbursement and HST), which I reduce by $1,000, representing the costs I award to the Respondent for the June 27 hearing before Justice Trousdale, resulting in a total of $6,000 (inclusive of disbursements and HST) owing by the Respondent to the Applicant, payable forthwith.
Madam Justice Julie Audet
Date: September 13, 2017
CITATION: Bernard v. Fuhgeh, 2017 ONSC 5432
COURT FILE NO.: FC-17-361
DATE: 20170913
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARIE MARIELLE EDITH BERNARD, Applicant
-and-
WILLIAM NDZE FUHGEH, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Marie Hélène Godbout/Marc Coderre, for the Applicant
Respondent, self-represented
costs ENDORSEMENT
Audet J.
Released: September 13, 2017