Curry v. Curry, 2018 ONSC 1667

OTTAWA COURT FILE NO.: FC-12-2306-1

DATE: 2018/03/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ian Curry

Applicant

– and –

Cathy Curry

Respondent

H. Hunter Phillips, for the Applicant

Judy Overgaard, for the Respondent

HEARD: By Written Submissions

Endorsement on Costs

1This is the costs endorsement on Mr. Curry’s Motion to Change the Order of Justice Doyle dated March 17, 2016, which was heard on November 2, 2017. Written submissions on the issue of costs were invited and received from both parties, along with copies of their bill of costs and offers to settle.

Positions of the Parties

2Mr. Curry’s position is that he was successful on all issues and is presumptively entitled to his costs. He submits, moreover, that he is entitled to full costs on the issue of child and spousal support for 2016 from and on the basis of his Rule 18(14) compliant Offer to Settle dated September 28, 2017. Mr. Curry submits additionally that Ms. Curry behaved unreasonably. His counsel’s bill of costs totals $82,067.95 inclusive of HST and disbursements. This represents 172.35 expended by counsel at $475 per hour. Mr. Curry seeks an order that Ms. Curry pay him $65,000.00.

3Ms. Curry’s position is, firstly, that Mr. Curry was not successful on all the issues; second, she did not behave unreasonably; third, his counsel’s hourly rate should not exceed $350; and finally, that the number of hours expended was excessive.

Applicable Law on Costs

4Rule 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.

5In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time thy arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.

6Rule 18(14) dictates that a party is entitled to cost from the date of an offer on a full recovery basis if the criteria contained therein are met.

7The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA) at para 26.

Analysis

8Mr. Curry served an Offer to Settle on September 28, 2017, which was identical to the outcome of the motion on the issue of 2016 support. Ms. Curry asserts that she behaved reasonably in agreeing with the Applicant’s income for support purposes for 2016. The real contested issue in this motion was Mr. Curry’s 2017 (and beyond) income for the purposes of child and spousal support. The success on the issues of the division of antiques and the cottage property were secondary, and success on them by Mr. Curry was mixed. Additionally, defending an allegation of contempt is no small thing, and Mr. Curry was not successful on this claim.

9The subject matter of the motion was important to the parties and relatively complex. With respect to Mr. Phillips’ hourly rate, Ms. Curry relies on the case of Potter v. Dhieux, 2013 ONSC 664 in support of the proposition that $350 per hour is the maximum billing rate that he counsel could charge. Potter is a 2013 costs decision of Justice Kershman, in which he in turn relied upon a 2005 INFORMATION FOR THE PROFESSION issued by the Costs Subcommittee of the Rules of the Civil Rules Committee, in which it is noted that $350 per hour is the maximum amount that a lawyer with 20 years or more should charge per hour for costs purposes. At paragraph 44, Justice Kershman indicated that the Court was not aware of any follow up to the INFORMATION, and he applied a $350 per hour maximum. Mr. Curry, however relies on Debora v. Debora, 2005 CarswellOnt 676, in which Justice Backhouse indicated at paragraph 42 that the “costs grid does not apply where counsel has “special expertise””, which she found applied to counsel in that case. I equally find that it applies to Mr. Phillips in this case; he has 42 years of experience, for 28 of which he has been certified by the Law Society as a specialist in Family Law. I find that his hourly rate of $475 to be reasonable in the circumstances.

10With respect to the number of hours Mr. Phillips expended on the case, I agree that it is somewhat excessive. I recognize that the preparation of materials was extensive, particularly in Mr. Curry having to respond to the allegation that he was underemployed and the claim of imputation of income for him. Of note, the affidavits of Ms. Curry were replete with submissions (as opposed to evidence) and they were not helpful to the Court. As such, they were likely challenging to respond to as well. However, I find that the number of hours spent on “preparation” on October 2, 3, 4 and 5, 2017 (13.4) and again on October 26, 27, 30 and November 2, 2017 (12.2) when the matter was adjourned to November 2, are likely somewhat redundant and excessive. I would reduce Mr. Phillips bill of costs by 15 hours.

11Taking all of the factors of Rules 18 and 24 of the FLR’s into consideration, including Mr. Curry’s Offer to Settle of September 28, 2017, his mixed success on some of the issues on the motion, combined with a reduction in the number of hours billed, I find that the Respondent, Ms. Curry, shall pay to the Applicant, Mr. Curry, $50,000.00 in costs inclusive of GST and disbursements.