Superior Court of Justice - Ontario
Citation: Bloom v. Bloom, 2017 ONSC 7514
Court File No.: FC-10-2812
Date: 2017-12-15
Re: Jennifer Bloom, Applicant
And: Barry Bloom, Respondent
Before: Madam Justice Julie Audet
Counsel: Linda A. Hanson, for the Applicant Stéphane A. MonPremier, for the Respondent
Heard: By written submissions
Costs Endorsement
[1] On October 19, 2017, I heard a motion brought by Mr. Bloom to terminate his spousal support obligations towards Ms. Bloom. Ms. Bloom resisted the motion and sought a dismissal of Mr. Bloom’s motion. By virtue of my decision released on November 2, 2017, I reduced spousal support to 1$ per month, retroactive to April 1, 2017, for a period of five years after which spousal support will terminate unless further varied as a result of a change in the parties’ circumstances.
[2] After confirming that Mr. Bloom was clearly the successful party in this motion, I invited the parties to provide me with written submissions on costs should they be unable to settle the issue.
[3] The parties having been unable to agree, this is my decision on costs.
Analysis
[4] 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.
[5] The major problem I encounter in determining costs in this matter is that neither party has provided a Bill of Costs that was sufficiently organized (by major steps undertaken in the case) to allow me to decipher what work was done for each step of the case (preparation of pleadings, attendance at first appearance, case conference, questioning and the preparation of the motion itself). It is not sufficient for counsel, as is unfortunately seen too often, to provide the court with a one page Bill of Costs that confirms the total number of hours worked on a matter by the lawyer and his or her hourly rate, along with the lawyer’s detailed client ledger providing a lengthy chronological account of all entries (time and disbursements) entered in the firm’s accounting system.
[6] This is what both counsel have provided in this case. As a result of not being provided with a summary of work completed for each step of the case, I am left with the task of going through the lengthy detailed ledgers trying to calculate how much time and disbursements was dedicated to each step in the case, a task that I am not prepared to undertake.
[7] As clearly stated in rule 24(10) and by our Court of Appeal in Islam v. Rahman, ONCA 622, 2007 ONCA 622, 41 R.F.L. (6th) 10, the court must determine costs after each step in a case. While I am prepared to include in my cost award the time and expenses related to questioning or to other out-of-court steps (as the court would not have had an opportunity to decide costs for those steps), I am not prepared to make an award of costs that would include all of the steps undertaken in this matter from the date of filing of the motion to the date of the hearing itself, as counsel for Mr. Bloom is seeking.
[8] The second difficulty I have in this task is that both counsel are claiming that the other party has behaved unreasonably and/or in bad faith, accusing each other of failing to respond, to cooperate, to disclose and to act in a timely manner. Based on the contradictory evidence before me, I cannot make a determination as to whether one party or the other (or both) has behaved in a way that would elevate their conduct above the high threshold of bad faith or unreasonableness.
[9] What is clear from the materials before me is that the Motion to Change was filed in October 2016. The matter followed its course, and despite all of the lawyers’ allegations against one another, the matter proceeded for final determination before me on October 19, 2017, exactly one year after the matter was commenced, and with all relevant evidence having been produced. I cannot reasonably come to the conclusion that the conduct of either party in this case caused undue delay and, therefore, increased expenses, as it took exactly one year to complete from beginning to end.
[10] As a result, I resort back to the basic principles for the determination of costs set out in the Family Law Rules, O. Reg. 114/99. Under rule 24(1), there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. Mr. Bloom was clearly the successful party in this case, and as such, he is presumably entitled to his costs on a partial indemnity basis.
[11] Rule 24(11) of the Family Law Rules 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 including offers to settle.
[12] I have no reason to believe that the amount of time spent by counsel for Mr. Bloom on this file, being a total of 46.5 hours, was unreasonable. It is similar to the time spent by counsel for Ms. Bloom. I note, however, that his time entries begin on April 25, 2016, six months before his client’s Motion to Change was filed with the court. In addition, and as stated before, his Bill of Costs includes all steps taken in this matter, which appears to have included a case conference, a mediation session, questioning and an adjourned first motion hearing, in addition to the actual motion hearing before me. His hourly rate is reasonable in light of his years of experience. The total cost incurred by Mr. Bloom from April 2016 to the date of the motion in October 2017 is $15,792.25 inclusive of disbursements and HST, which is reasonable.
[13] The issues in this case were not overly complex but they were very important to the parties, and thus necessitated careful consideration and preparation by their lawyers.
[14] While the parties did exchange Offers to Settle, none of them would have afforded the other party with a more favourable result than the order I made, with the exception of Mr. Bloom’s Offer to Settle dated May 26, 2017. That Offer to Settle, which provided for the payment of $500 per month in spousal support until Mr. Bloom began receiving pension income, was clearly more beneficial to Ms. Bloom than the outcome she obtained at the motion. However, that offer, although dated and signed on May 26, 2017, was only served on Ms. Bloom on October 15, 2017. Given that this was only four days before the motion hearing, its impact on costs is minimal, although it does entitle Mr. Bloom to his costs on a full recovery basis from the moment it was served.
[15] In light of all of the above, I am of the view that an award of costs in the amount of $7,000 payable by Ms. Bloom to Mr. Bloom is appropriate in the circumstances, and I so order.
Madam Justice Julie Audet
Date: December 15, 2017
CITATION: Bloom v. Bloom, 2017 ONSC 7514
COURT FILE NO.: FC-10-2812
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JENNIFER BLOOM, Applicant
-and-
BARRY BLOOM, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Linda A. Hanson, for the Applicant Stéphane MonPremier, for the Respondent
COSTS ENDORSEMENT
Audet J.
Released: December 15, 2017