Robinson v. Connolly, 2017 ONSC 6609
CITATION: Robinson v. Connolly, 2017 ONSC 6609
COURT FILE NO.: FS-12573-13
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew George Robinson Applicant
– and –
Julie Ann Margaret Connolly Respondent
Christopher D. McInnis, for the Applicant
Réjean Parisé, for the Respondent
HEARD: October 30, 2017
RULING ON COSTS
GAUTHIER, J.
[1] On May 1, 2017, I released my reasons for judgment following a one day trial which proceeded on April 19, 2017.
[2] On the morning of the trial, counsel advised that they had resolved certain issues such as ongoing child support and section 7 expenses, etc.
[3] The trial proceeded on the narrow issue of whether the equalization payment provided for in the parties’ separation agreement of May 2011 had been satisfied, or whether there were arrears of child support, owing to the respondent. The hearing was concluded in one day.
[4] The applicant was successful and the respondent’s claim was dismissed. Had the respondent been successful, the applicant would have owed her a significant sum.
[5] The applicant now seeks costs in the range of $10,000 to $13,000. The respondent submits that there should be no costs awarded to either party.
Applicant’s Position
[6] The applicant’s total legal fees are in the amount of $37,500. Counsel filed several accounts to the applicant, including from the applicant’s prior counsel:
a. account in the amount of $9,790.16 for the period from November, 2013 to January, 2014;
b. account in the amount of $3,339.72, for December, 2014;
c. account in the amount of $4,660.28, for the period from January, 2015, to May, 2014;
d. account in the amount of $2,723.30, for the period from June, 2015, to November, 2015; and
e. account in the amount of $22,276.70, for the period from January, 2016, to May, 2017.
The total billed is $42,790.16, inclusive of disbursements and HST.
[7] The portion of the total fees that relates to preparation for trial is $13,830. The total fees of $37,500 necessarily include time spent and costs incurred in relation to the issues that were resolved before and on the eve of trial.
[8] Counsel recognizes that there is no readily apparent manner of apportioning the costs and parsing out those costs relating to the issue of interpretation of the separation agreement which was the only issue upon which the trial proceeded. What is suggested, then, is a 50% reduction of that amount as a starting point for the determination of the costs that should be awarded.
[9] Counsel reminds me that in family law matters, special circumstances need not exist in order for the court to make a costs award approaching substantial indemnity, and, that generally, costs recovery should approach full recovery, barring unreasonable conduct. (Biant v. Sagoo (2001), 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284.
[10] Counsel relies on the presumption that a successful party is entitled to costs, and requests that I take into account the offers that were made leading up to trial. He relies on subsection 18(16) of the Family Law Rules (and not subsection (14) of Rule 18 which deals with the costs consequences of a failure to accept an offer).
Respondent’s Position
[11] For his part, counsel for the respondent points out that both counsel worked very hard in their efforts to resolve issues, and that only approximately one-half of the amount billed to the applicant for trial preparation by his counsel would relate to the issue that was tried. The balance would relate to other issues which the parties, through their counsel, were able to resolve.
[12] The respondent suggests that she was successful on an earlier motion heard by Gordon J. in January 2014, and that she would have likely been entitled to some $4,000 in costs, had the costs for that step been argued. A review of the terms of the January 2014 order leads me to conclude that the success was divided, despite the respondent’s suggestion.
[13] The respondent further suggests that she did better on the negotiated and resolved issues than did the applicant, and therefore, overall, there has been divided success which would justify a no costs order.
[14] The respondent provided her bill of costs, which shows legal fees (and disbursements) for the entire period of the proceeding in the amount of $31,317.
Analysis and Conclusion
[15] The parties were able, over time, and with much effort on the part of their counsel, to resolve almost all of the issues raised in their pleadings. As is frequently the case, the resolutions involved compromises and shifts in position, on both sides.
[16] As a rule, when parties resolve issues and their resolution is silent on the matter of costs, then it is presumed that no costs will flow, in connection with those issues. Having said that, costs can be ordered after a resolution if the court determines that one party was more successful overall than the other party. See Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.). On the facts of this case, including the divided success on the January, 2014 motion, I am not prepared to conclude that the respondent was more successful, overall, so as to justify a no costs order.
[17] It is reasonable then, to do what counsel suggested, that is to fix, as a starting point, a portion only of the total legal fees incurred throughout the process.
[18] Rule 24(10) of the Family Law Rules sets out that the court should determine the issue of costs promptly after each step in the case. Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.) stands for the proposition that unless an order for costs is made at the end of each step in the case, or, unless costs are reserved, the trial judge should not, as a general rule, consider the costs associated with the earlier step, when determining costs.
[19] That being the case, the costs associated with the earlier motion of January 16, 2014, which resulted in the Order of Gordon J. referred to above are not to be considered by me. The costs associated with that step were not dealt with. Gordon J. did indicate, as part of his Order, that “the determination of costs should await the completion of the respondent’s motion for child support, and accordingly, costs are reserved to the judge then presiding.” However, no judge presided over the issue of child support, because the parties resolved it. Nor were the costs of that motion reserved to the trial judge. No costs associated with the January, 2014 Order, will factor into my determination of the issue of costs.
[20] The applicant incurred approximately $7,000 in fees before the end of January, 2014. The statements of account for that time period indicate that much of those fees were related to the January, 2014 motion. Thus, the total of $37,500 for fees is reduced by $7,000. The new starting point then is approximately $30,000.
[21] The exercise of determining an appropriate costs award involves balancing the purposes of costs orders (partial indemnification of successful litigants, encouraging settlement, and discouraging inappropriate conduct) with the importance of not unfairly deterring people from pursuing legitimate claims for fear of disproportionate costs consequences. See Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.).
[22] I accept that the applicant incurred approximately $15,000 of fees relating to the issue that was tried on April 19, 2017.
[23] In all the circumstances, and after considering the provisions of the rules, the offers to settle, the principles in Biant and in Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, I find that costs in the amount of $9,000 is a fair and reasonable amount that the respondent should pay.
The Honourable Madam Justice Louise L. Gauthier
Released: November 2, 2017
CITATION: Robinson v. Connolly, 2017 ONSC 6609
COURT FILE NO.: FS-12573-13
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew George Robinson Applicant
– and –
Julie Ann Margaret Connolly Respondent
RULING ON COSTS
Gauthier J.
Released: November 2, 2017