CITATION: Ross v. Lussier, 2017 ONSC 5569

COURT FILE NO.: FC-15-1613

DATE: 2017/09/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Alexander Ross

Applicant

– and –

Patricia Marie Suzie Lussier

Respondent

Genevieve Lalonde, counsel for the Applicant

Cheryl Hess, counsel for the Respondent

HEARD: In Writing

COSTS Endorsement

Shelston, J.

[1] On August 15, 2017, I released my decision regarding which schools the children should attend in Ross v. Lussier, 2017 ONSC 4795. On the issue of costs, I encouraged the parties to attempt to settle the issue of costs. They did not and have they now have provided their submissions on costs.

[2] The applicant claims $11,473.06 for costs on a substantial indemnity basis and partial indemnity costs in the amount of $7,855.25.

[3] The respondent’s position is it this is not an appropriate case toward costs on full or even partial indemnity basis because even though the father was successful on the motion, the respondent provided a reasonable offer and she is an extreme and dire financial need and has her own legal fees of $14,680.66.

[4] Under Rule 24 (1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. In this case, the applicant was a successful party.

[5] 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.

[6] If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. (Rule 24(8) of the Family Law Rules)

[7] The factors to be considered in assessing costs are set out in Rule 24 (11) of the Family Law Rules, which include:

(a) The importance, complexity or difficulty of the issues;

(b) The reasonableness or unreasonableness of each party’s behaviour in the case;

(c) The lawyer’s rates;

(d) 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;

(e) Expenses properly paid or payable; and

(f) Any other relevant matter.

[8] 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 20380 (ON SC), 8 R.F.L. (5th) 387 (Ont. S.C.).

[9] Even if “full recovery” provisions of Rule 18 of the Family Law Rules are engaged, the quantification of costs still requires an overall sense of reasonableness and fairness. The Rules do not require the court to allow the successful party demand a blank cheque for their costs. The court retains a residual discretion to make costs proportional, fair and reasonable in all the circumstances (Chomos v. Hamilton, 2016 ONSC 6232, Pazaratz, J., para 57.)

[10] By offer to settle dated August 3, 2017, five days before the motion, the applicant made an offer to settle that Charlotte would attend Earl of March High School, Bowen and Caleb would attend Huntley Centennial in core French and Lexi would attend Huntley Centennial in French immersion. If the offer was accepted by August 4, 2017 at 5 pm, both parties would pay their own legal fees. If the offer was accepted after August 4, 2017 at 5 pm, the respondent would pay the applicant’s legal costs in relation to the motion on a full indemnity basis from the date of this offer. Finally, the offer is open for acceptance until one minute after the commencement of the motion on August 8 or until withdrawn by the applicant in writing.

[11] The respondent’s offer to settle, dated August 4, 2017, was that Charlotte would attend Earl of March Secondary School, Bowen would attend Huntley Centennial in the French core program and that Caleb and Lexi would attend the Huntley Centennial in the French immersion program. In addition, the mother’s offer contained provisions regarding the cost of transportation for Charlotte and the three younger children.

[12] One of the factors the court is to consider in assessing costs is the importance, complexity or difficulty of the issues. I do not find that the issues were complex or difficult but they were extremely important considering the issues related to the children’s school and that two of the four children have special needs.

[13] In determining the quantum of costs, I am to consider the time properly spent on the case, including conversations between counsel and the party and witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing and preparation and signature of the order. Both parties provided extensive affidavit evidence and a factum.

[14] I find that the applicant’s counsel hourly rate of $195 to be reasonable based on her five years of experience. In reviewing the applicant’s bill of costs, counsel has docketed 50 hours for a motion that took three hours to argue. The total legal costs incurred by the applicant for his counsel is $9750. In addition, as part of his costs, he claims $552 from an articling student and $407 for a law clerk totaling $10,709.

[15] On the other hand, counsel for the mother, who is more experienced than counsel for the father, spent a total time of 29.45 hours.

[16] In assessing costs, 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 (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)

[17] I find the time spent by the respondent’s counsel of approximately 30 hours to be reasonable. Consequently, I find that the 50 hours docketed by counsel for the applicant to be excessive for the nature of the motion that was presented and argued.

[18] I find that the applicant’s offer dated August 3, 2017 when compared to the order made, entitles the father to substantial indemnity from the date of the offer and partial indemnity up to the date of the offer. Rule 18 (14) of the Family Law Rules states that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery across from that date, if the offer relates to a motion, it is made at least one day before the motion date, the offer does not expire or is withdrawn before the hearing starts, the offer is not accepted and the party who makes the offer obtains an order that is as favourable as or more favourable than the offer.

[19] The respondent argues that she is of limited means and the court should consider this in assessing costs. I have found that the mother has been struggling financially. The case law provide certain principles to be taken into consideration when a party invokes the issue of limited means in defence of a costs claim such as:

(a) a relevant consideration fixing costs is the financial condition of the parties.(M. v. M., 2003 18880 (ON CA), 2003 CarswellOnt 3606);

(b) limited ability to pay of an unsuccessful party may not be used to shield that party from a liability for cost particularly when a party has acted unreasonably.(Gobin v. Gobin, 2009 ONCJ 278, 71 R.F.L.(6th) 209 );

(c) the ability to pay may be relevant to the issue of the quantum or scale of costs but not to a party’s entitlement to costs; to help (Izyuk v. Bilousov, 2011 ONSC 7476, 2011 CarswellOnt 14392).

[20] Regarding the disbursement, I have deleted the scanning cost of $174 to arrive at a figure of $373.75 which I believe is reasonable.

[21] The applicant seeks $552 for the time put in by the articling student in legal research and filing the factum and the book of authorities and $407 for the involvement of a law clerk who assisted administrative tasks. I find that a reasonable amount for the articling student is $300 and will not award costs for the law clerk.

[22] The applicant submits of the respondent was unreasonable in that she ignored medical evidence regarding Bowen including a report from Dr. James. I do not find that the mother acted unreasonably but that she was advocating which she believed was in the best interests of her children.

Disposition

[23] Based on the circumstances in this case, the success of the father on the mother, the effect of his offer to settle, the mother’s limited means and considering what the losing party would reasonably expect to pay in costs, I find it fair and reasonable that the father be awarded costs of $8,000 inclusive of HST.

[24] Despite the mother’s financial situation, she is responsible for the position taken at the motion. The Rules and jurisprudence provide that the loser pays costs. However, I find that it is unrealistic for her to pay the costs of $8,000 at this time.

[25] This motion was a temporary order. The parties have not resolved the many issues outstanding including the equalization of the net family property. The matter was ordered to proceed to trial at a settlement conference on December 19, 2016 however, the matter is still not yet listed for trial. In any event, I order the mother shall pay the costs within 60 days of a final order in this matter.

Shelston J.

Released: September 20, 2017

CITATION: Ross v. Lussier, 2017 ONSC 5569

COURT FILE NO.: FC-15-1613

DATE: 2017/09/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Alexander Ross

Applicant

– and –

Patricia Marie Suzie Lussier

Respondent

cost ENDORSEMENT

Shelston J.

Released: September 20, 2017