Court File and Parties
Court File No.: FS-14-14656 Date: 2018-06-18 Superior Court of Justice - Ontario
Re: Valentina (Bello) Veljanovski, Applicant And: John Veljanovski, Respondent
Before: Howard J.
Counsel: Cheryl Goldhart and Maneesha Mehra, for the Applicant Michael G. Cochrane, for the Respondent
Heard: Written submissions
Costs Endorsement
Overview
[1] I was designated the case management judge for this matter on June 16, 2015.
[2] There are two costs issues for determination before me, involving essentially two motions brought by the respondent father.
[3] The first cost disposition arises out of Dr. Veljanovski’s motions, heard before me on October 23, 2017, for (a) the advancement of funds for payment of legal fees and disbursements from the moneys held in trust from the proceeds of sale of the matrimonial home, and (b) leave to bring a motion for interim spousal support.
[4] Dr. Veljanovski was successful on the motions before me in October 2017. In a five-page endorsement released October 26, 2017, I provided preliminary reasons for my rulings on the motions, indicating that further reasons would follow.[^1]
[5] The second cost disposition relates to Dr. Veljanovski’s motion, heard before Campbell J. on March 21, 2018, for an adjournment of the trial, which had been scheduled to proceed on April 3, 2018.
[6] Dr. Veljanovski was unsuccessful on the motion before Campbell J. As a result, the trial was ordered to proceed as scheduled. The ruling of Campbell J. on the motion was released in a two-page endorsement on March 21, 2018. Subsequently, in a six-page endorsement released April 4, 2018, Campbell J. provided further reasons for his dismissal of the motion.[^2]
[7] Following the dismissal of Dr. Veljanovski’s motion to adjourn the trial, the entire matter then settled. The parties executed final minutes of settlement as of March 23, 2018.
[8] In para. 38 of his April 4th reasons, Campbell J. ordered that costs of the motion to adjourn “are reserved to the trial judge or the judge dealing with final disposition of this proceeding.”
[9] On April 5, 2018, as case management judge, I directed that the costs submissions of the parties contemplated by the endorsement of Campbell J. were to be directed to me for my determination.
Governing Legal Principles
[10] Costs awards are governed by section 131 of the Courts of Justice Act[^3] and Rules 24 and 18 of the Family Law Rules.[^4]
[11] Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs. Rule 24 of the Family Law Rules governs the determination of costs in family law proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs. Subrules 18(14) to (16) provide guidance to the court in assessing the impact of offers to settle on costs awards.
[12] Making an award of costs is inherently an exercise of judicial discretion. Indeed, our Court of Appeal has said that “costs awards are ‘quintessentially discretionary’.”[^5] While the provisions of Rule 24 of the Family Law Rules have circumscribed the broad discretion granted to the court by s. 131(1) by the Courts of Justice Act, they have not completely removed the court’s discretion.[^6]
[13] The indemnification of the successful party is a paramount objective, but not the only one, to be served by a costs order.[^7] Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”[^8]
[14] Consideration of success is the starting point in determining costs.[^9] Costs generally follow the event. In other words, a successful party is generally entitled to compensation for her or his legal costs. That principle is expressly reflected in the presumption codified in subrule 24(1) of the Family Law Rules, which provides that: “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[15] In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. Rather, the overriding principles that the court must apply are fairness and reasonableness. As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): “[o]verall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”[^10]
[16] In setting the amount of costs to be awarded, subrule 24(11) of the Family Law Rules enumerates a number of factors that must be taken into account, as follows:
(11) In setting the amount of costs, the court shall consider,
(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 witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[17] However, while subrule 24(11) mandates the court to consider the enumerated factors, our Court of Appeal has held that the “Family Law Rules demand flexibility in examining the list of factors in subrule 24(11).”[^11]
[18] The interest in promoting settlement, which, again, is one of the fundamental purposes of costs awards, finds expression in subrules 18(14) to (16) of the Family Law Rules, which address the cost consequences of failing to accept offers to settle, in the following terms:
(14) 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 of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[19] Subrule 18(4) of the Family Law Rules provides for the following formal requirements of an offer to settle:
An offer shall be signed personally by the party making it and also by the party’s lawyer ….
[20] I am guided by these governing principles here.
Analysis
The Motions for Advancement of Funds and Leave to Move for Spousal Support
Factual Background
[21] Pursuant to para. 14 of the order of Campbell J. dated May 29, 2015, leave of the case management judge must be obtained in advance before any party may bring a motion in this proceeding.
[22] At the case conference held by telephone conference on April 7, 2017, I granted leave to Dr. Veljanovski to bring a motion for the advancement of funds for payment of legal fees and disbursements from the moneys currently held in trust from the proceeds of sale of the matrimonial home.
[23] Dr. Veljanovski’s motion for the advancement of funds was further addressed at the case conferences held on April 24, 2017, and August 16, 2017.
[24] At the case conference held on August 16, 2017, it was agreed that Dr. Veljanovski’s motion for advancement of funds and his motion for leave to bring a motion for interim spousal support should be heard prior to the parties’ other contemplated motions.
[25] In Dr. Veljanovski’s notice of motion, filed May 1, 2017,[^12] he sought:
a. an order pursuant to rule 24(12) of the Family Law Rules that Dr. Veljanovski receive forthwith an advance on legal fees and disbursements in the amount of $150,000 to be disbursed from the funds held in trust by Kirwin Partners LLP or from Ms. Bello’s assets;
b. an order granting Dr. Veljanovski leave to bring a motion for interim spousal support pending trial, and an order that such claim shall include an entitlement to retroactive spousal support; and
c. an order staying the enforcement of the child support required by my order dated August 10, 2015, until either the trial of the matter or until the determination of Dr. Veljanovski’s motion for summary judgement to enforce the settlement said to have been reached on September 20, 2016.
[26] Counsel for the parties subsequently agreed that a more appropriate amount for the advance of funds for the costs of trial was $100,000.
[27] At the hearing of the motions before me on October 23, 2017, which was held in court with counsel attending in person, counsel then acting for Ms. Bello[^13] advanced two preliminary objections.
[28] First, counsel for Ms. Bello argued that Dr. Veljanovski’s motion for a stay of the enforcement of the child support order and related relief ought not to be heard because no leave of the case management judge had been given for such a motion to be heard. Specifically, counsel pointed to my endorsement following the case conference of August 16, 2017, where the endorsement is quite clear that the motions that were to be heard first were Dr. Veljanovski’s motion for an advancement of funds for payment of legal fees and disbursements and his motion for leave to bring a motion for interim spousal support.
[29] At the hearing of the motion, I ruled that Ms. Bello’s preliminary objection in this regard was well founded, and I directed that Dr. Veljanovski’s motion for a stay of the child support order and related relief would not be heard that day.
[30] Counsel for Ms. Bello also sought to preclude argument of the motions for advancement of funds and for leave to hear the motion for interim spousal support on the basis that, inter alia, pursuant to rule 1(8) of the Family Law Rules, the court ought not to entertain the motions by Dr. Veljanovski in circumstances where he had apparently failed to comply with his child support obligations under my order of August 10, 2015.
[31] I dismissed this second preliminary objection of Ms. Bello on the grounds that, apart from the fact that there had been no proper notice of motion filed with the court, Ms. Bello well knew as early as April 7, 2017 – and certainly by our case conference of August 16, 2017 – that leave had been given to Dr. Veljanovski to bring his motion for advancement of funds. On two occasions, we took the time during our case conferences to set a litigation schedule for the hearing of the motion.
[32] I ruled that if Ms. Bello was minded to make a preliminary objection to preclude Dr. Veljanovski from bringing that motion because he had not been paying child support in accordance with my order of August 10, 2015, she ought to have brought such a motion under rule 1(8) well in advance of the scheduled hearing date.
[33] As referenced above, in my endorsement released October 26, 2017, I allowed Dr. Veljanovski’s motion for an advancement of funds and granted him leave to bring a motion for interim spousal support.
[34] On the motion for the advancement of funds, at para. 27 of my endorsement, I ruled that “the moving party respondent was successful on the motion and is presumptively entitled to his costs of the motion.” I directed counsel for the parties to confer with each other on the issue of costs and endeavour to come to an agreement on the issue.
[35] On the motion for leave to bring the respondent’s motion for interim spousal support, at para. 29 of my endorsement, I ordered that costs of the motion were reserved to the judge hearing the motion on its merits.
[36] Counsel for the parties were unable to come to an agreement on the question of costs for the motion for the advancement of funds. Counsel subsequently requested an extension of time in order to file their costs submissions, which I granted.
[37] At some point following the release of my endorsement, counsel for Ms. Bello advised that Ms. Bello was intent upon appealing my decision. I understand that counsel for Ms. Bello served respondent’s counsel with a motion for leave to appeal, but it was never filed with the court. In any event, by email dated February 1, 2018, counsel subsequently confirmed that the parties had come to some agreement in this respect, and Ms. Bello had “agreed to forego any appeal of the advance order on the basis that each of Val and John will receive $100,000 from the sale proceeds.”
[38] Following consideration of submissions of counsel for the parties, I ruled on February 26, 2018 (by email correspondence to counsel), that given that the applicant had agreed to waive her rights of appeal in respect of my October 2017 ruling, the parties did not require further detailed reasons for my decision to allow the respondent father’s motion, as had been submitted by counsel for Dr. Veljanovski.
[39] However, the parties remained unable to agree on the issue of costs.
[40] In accordance with the agreed schedule, counsel for Dr. Veljanovski delivered his costs submissions on November 15, 2017; counsel for Ms. Bello delivered her responding submissions on February 13, 2018; and counsel for Dr. Veljanovski delivered his reply submissions on February 16, 2018.
Position of the Parties
[41] Dr. Veljanovski seeks payment of his costs on a substantial indemnity basis given that, he says, he made repeated offers of settlement of the motion and he ultimately obtained an order of the court that was as favourable or more favourable than his offers to settle.
[42] As such, in accordance with para. 15 of his costs submissions, Dr. Veljanovski seeks payment from Ms. Bello of his costs on the motion for the advancement of funds on a substantial indemnity basis in the total amount of $37,673.22, comprised of $34,313.58 for fees (including HST) and $3,359.64 for disbursements (including HST).
[43] Ms. Bello acknowledges that Dr. Veljanovski is entitled to his costs of the motion but submits that he is entitled to payment on a partial indemnity basis only in the total amount of $9,543.46, comprised of $8,827.56 for fees, plus $715.90 in disbursements.
Determination
[44] The respondent husband was the successful litigant on the motion before me and is entitled to his costs of the motion for the advancement of funds for payment of legal fees and disbursements from the moneys currently held in trust from the proceeds of sale of the matrimonial home.
[45] While the respondent might have otherwise been entitled to his costs of the motion for leave to bring his motion for interim spousal support, given that the costs of the leave motion were reserved to the judge hearing the motion on its merits, and given that the matter has now resolved in its entirety without the need to hear that motion on its merits, no award is made for the motion for leave to bring the motion for interim spousal support.
[46] Counsel for the respondent claims 71.2 hours in total for the motion for the advancement of funds, 58.5 hours of which reflects his own recorded time. In para. 11 of her submissions, the applicant submits that, while high for a two-hour motion, the applicant “does not challenge the total time spent by the respondent’s lawyer, with the exception of travel time claimed for attendances in Windsor.”
[47] That said, I agree with some of the points raised by the applicant in paras. 11 to 13 of her submissions. In that regard, the following adjustments should be made:
a. I would not allow the time claimed on behalf of counsel’s law clerk. While such time may be appropriate in certain circumstances, on my review of the bill of costs here, there would appear to be some work that overlaps with that claimed on behalf of counsel, and some part of the claimed work is properly subsumed within the time and rates of counsel as an overhead expense. The time claimed on behalf of the law clerk amounts to 12.7 hours. I would deduct the amounts claimed for that time.
b. I would reduce six hours for travel time for the two attendance in Windsor (the first, to attend the questioning of Dr. Veljanovski on September 18, 2017, and the second, to argue the motion).[^14] It may be reasonable for the client to pay for travel time, where there has been adequate disclosure to and agreement by the client; however, in the circumstances of the instance case, I do not believe it is reasonable for the unsuccessful party to pay for counsel’s travel time.
c. I would remove one hour for preparation of the amended answer, which is not directly related to the motion.[^15]
d. In the result, the amounts claimed in respect of the adjusted 51.5 hours of counsel would be as follows, for partial indemnity, substantial indemnity, and actual:
Fees: $19,122.00 $25,496.00 $31,870.00 HST: 2,485.86 3,314.48 4,143.10 Total: $21,607.86 $28,810.48 $36,013.10
[48] I also agree with the submission of the applicant, as set out in para. 18 of her submissions, that given that on the motion before me on October 23, 2017, both the motion for the advancement of funds and the motion for leave to bring a motion for interim spousal support were argued, and given further that I ordered that the costs of the motion for leave be reserved to the judge hearing the spousal support motion on its merits, there should be a further adjustment for the time spent in relation to the leave motion.
[49] That said, I disagree with counsel for the applicant that a reasonable allocation for the time spent on the leave motion and the respondent’s request for an order staying his ongoing child support is 30 per cent. We did not spend almost a third of our time and efforts that day on those issues. In my view, a reasonable allocation for those issues, collectively, is 20 per cent.
[50] Accordingly, if one makes a further adjustment to reduce the amounts claimed by 20 per cent, the claim for fees incurred in respect of the motion for the advancement of funds amounts to, on a partial indemnity scale, $17,286.29 (inclusive of HST), and, on a substantial indemnity scale, $23,048.38 (inclusive of HST).
[51] I disagree with counsel for the applicant that the respondent’s rates should be further reduced because the respondent retained Toronto counsel. Given that the applicant has herself been represented by Toronto counsel for the majority of time in this proceeding, and given further that the applicant claims entitlement to Toronto rates in respect of the costs submissions on the motion to adjourn, it does not lie in the applicant’s mouth to say that the respondent should not be compensated using Toronto counsel’s rates.
[52] Counsel for the respondent argues, inter alia, that the respondent is entitled to his costs on a substantial indemnity basis because he was successful in achieving a better result on the motion than that which was reflected in two offers to settle that he served on the applicant in advance of the motion.
[53] On October 16, 2017, the respondent served an offer to settle that proposed that the parties consent to each party receiving an advance of $95,000 from the proceeds of sale of the matrimonial home, and the applicant would consent to the respondent having leave to bring his motion for interim spousal support. That offer also provided that if it were accepted by October 18, 2017, there would be no order as to costs, and if accepted after that date, the costs payable by the applicant would be fixed in the amount of $5,000.
[54] On October 17, 2017, the respondent served another offer to settle, again proposing that each party would receive an advance of $95,000 from the proceeds but also providing that a further advance of $15,000 from the proceeds of sale of the matrimonial home should be paid directly to the Family Responsibility Office, to be held in trust, until further order of the court, to permit the respondent’s driver’s licence to be reinstated and enforcement of child support be stayed. Again, the offer provided that there be no costs payable if accepted by October 18, 2017, and that the costs be fixed and limited to $5,000 if accepted after that date.
[55] While there is some merit to the applicant’s submission that the order made was not as favourable or more favourable than the second offer of October 17th because the child support enforcement was not stayed (because the applicant objected to that motion being heard), the same cannot be said for the first offer of October 16th.
[56] The applicant submits that the first offer of October 16th was “superseded” by the second offer of October 17th. However, there is no evidence before me that the first offer was withdrawn or that the respondent served a notice of withdrawal, as contemplated by rule 18(6) of the Family Law Rules. Moreover, there is nothing in the text of the second offer of October 17th that provides, as is commonly done in practice, that all previous offers to settle are withdrawn or revoked. On the evidence before me, it appears that the first offer was not withdrawn or revoked, and it remained open to the applicant to accept the first offer, if she were so inclined.
[57] In my view, the order obtained was as favourable or more favourable to the respondent than the outcome contemplated by the first offer. The court ordered an advance of $100,000 to the respondent. The fact that the first offer also contemplated that the applicant would receive $95,000, i.e., that the applicant would also receive a benefit, is immaterial.
[58] Moreover, in considering the question of costs of the motion, I do not think it should be overlooked that, had the applicant chosen to accept either of the respondent’s offers, she would have had to pay, at best, only $5,000.
[59] However, the applicant also raises certain technical objections, arguing that the respondent’s offers to settle do not comply with the formal requirements of the Family Law Rules. Rule 18(4) requires that an offer to settle must be signed personally by the party making it and also by the party’s lawyer, where the party is represented. It is true that neither of the respondent’s offers were signed by Dr. Veljanovski (just as the offer to settle delivered by the applicant on October 17, 2017, was not signed by Ms. Bello).
[60] It has been held that rule 18(4)’s requirement that the offer to settle be signed personally by the party and his or her lawyer, if any, is mandatory.[^16]
[61] Having said that, even where an offer to settle does not comply with the formal requirements of rule 18(4), a court may have regard for the attempts of a party to resolve the dispute.[^17] Indeed, rule 18(16) expressly provides that: “[w]hen the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.”
[62] Moreover, in the context of the instant case, I agree with the following analysis of G.A. Campbell J. in Rafanan v. Visouvath and his conclusion that non-compliance of an offer to settle with the provisions of rule 18 should be addressed by way of an adjustment in the quantum of an award, not by disallowing any consideration of the offering party’s entitlement to an order on an enhanced scale. In Rafanan, Campbell J. held:
I agree that the documents faxed by Mr. Kilpatrick on August 3, 2001 and September 27, 2001 do not comply with Rule 18(4). They were not signed by Mr. Visouvath. Therefore, those “proposals” are not offers to settle as required by the Rules. The last proposal was also sent within the seven day period before trial, which is, for costs considerations, prohibited by Rule 18(14)2. For that additional reason, it cannot be relied upon when seeking a costs order.
I agree, however, with the implication of Aston J.’s reasons in Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.) at para.7, where he quotes Justice J. W. Quinn in Mallory v. Mallory (1998), 1998 CanLII 29653 (ON SC), 35 R.F.L. (4th) 222 (Ont. Gen. Div.), at para.31.
I hold the belief that the availability of solicitor-and-client costs, historically, has been too narrowly confined. ... The proliferation of litigation, particularly in the matrimonial realm, demands that litigants address their minds, early and often, to settlement of the outstanding issues. Unless the justice of the case requires otherwise, I see no reason why the failure of a losing litigant to make a written proposal for settlement of a motion should not transform what would otherwise be an adverse award of party-and-party costs into a higher award. ... Similarly, unless the justice of the case requires otherwise, I see no reason why the failure of a winning litigant to make a proposal for settlement should not deprive him or her of an award of costs or, at least, reduce that award. …
In this case, proposals for settlement were actually made but did not technically comply with all of the requirements of the Rules. Now that the temporary order has been granted denying the relief claimed by Ms. Rafanan, it is self-evident that Ms. Rafanan should have accepted the formal Rule 18 offer to settle of Mr. Visouvath dated August 1, 2001 (later informally varied on August 3rd).
Although I will adjust the quantum of this order as a result of the non-conformity to the Rule 18 requirements of Mr. Visouvath’s later offers to settle, Ms. Rafanan should have considered every offer or proposal to settle, in order to settle their dispute. Non-compliance with the specifics of Rule 18(14) should be addressed by the court by way of an adjustment in the quantum of an award, not by disallowing that party’s actual entitlement to such an order. To do so would, in my view, render the intent of Rule 18(7) and (16) moot. …
Courts expect all litigants and all counsel to be constantly vigilant of every opportunity to settle disputes, even after a trial hearing commences. The high cost of litigation, both financially and emotionally, requires this persistence.[^18]
[63] Echoing the last point made by Campbell J., I note that I have repeatedly warned the parties in the instant case of the court’s ongoing concerns for the mounting cost of their litigation.
[64] Accordingly, having considered the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, the factors enumerated in rule 24(11) of the Family Law Rules, the application of the provisions of rule 18, the history of the litigation, the exchange of the parties’ offers to settle, and all other relevant considerations, I would fix the respondent’s costs on the motion for the advancement of funds in the amount of $20,000 for fees (inclusive of HST).
[65] In reviewing the disbursements claimed by the respondent in his bill of costs, the amounts claimed for process server’s fees, the examiner’s fee for the examination of Ms. Bello, the examiner’s fee for the preparation of the transcript of the examination, and counsel’s reasonable travel expenses are all appropriate.
[66] However, the amounts claimed for facsimiles, conference call charges, and courier charges ought to be subsumed as general overhead costs. Further, I do not regard the $459.75 claimed for photocopying expenses to be fair, reasonable, or proportionate. I would allow $200 for a reasonable amount for photocopying in the instant circumstances.
[67] In the result, I fix the disbursements in the pre-tax amount of $2,625.71, which, allowing for HST of $341.34, results in a total amount of $2,967.05.
[68] In sum, as our Court of Appeal held in Boucher: “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”
[69] For all of the reasons set out above, I find that the total amount of $20,000 in fees, plus $2,967.05 in disbursements, is fair and reasonable in the circumstances of the instant case, and I fix the respondent’s costs on that basis in the total amount of $22,967.05.
The Motion to Adjourn the Trial
Factual Background
[70] In Dr. Veljanovski’s notice of motion, filed March 8, 2018,[^19] Dr. Veljanovski sought, inter alia:
a. an order adjourning the trial from the April 3, 2018, trial list; and
b. an order requesting the involvement of the Office of the Children’s Lawyer pursuant to ss. 89 or 112 of the Courts of Justice Act or an assessment pursuant to s. 30 of the Children’s Law Reform Act.[^20]
[71] In connection with Dr. Veljanovski’s motion, it seems that four affidavits were filed: the affidavit of Dr. Veljanovski sworn March 6, 2018;[^21] the affidavit of Ms. Lisa Henry, a law clerk employed by the office of counsel for the respondent, sworn March 6, 2018;[^22] the responding affidavit of Ms. Bello sworn March 9, 2018;[^23] and (arguably) the reply affidavit of Dr. Veljanovski sworn March 20, 2018.[^24]
[72] There were no cross-examinations conducted on any of the affidavits filed in support of the motions before Campbell J. on March 21, 2018.
[73] Ms. Bello brought her own motion, filed March 16, 2018,[^25] which was also heard before Campbell J. on March 21, 2018, in which Ms. Bello sought, inter alia:
a. an order dismissing all of the relief sought in the respondent’s motion; and
b. an order that the terms of the fully executed Parenting Plan dated February 9, 2018 be incorporated into a final order of the court.
[74] The respondent’s motion to adjourn the trial and the applicant’s motion were argued before Campbell J. on March 21, 2018, by way of telephone conference. I understand from the submissions of the parties that the conference call lasted approximately one hour only. As I have referenced, by the court’s endorsement of March 21, 2018, the respondent’s motion to adjourn the trial was dismissed.
[75] As well, by the ruling of Campbell J. released March 21, 2018, the applicant’s motion for an order incorporating the executed Parenting Plan into a final order was adjourned to the trial judge. As Campbell J. said in his endorsement of that day, “in my view, a determination of that issue will not require any significant time to be spent by the trial judge.”
[76] As such, to be clear, no order of costs in favour of the applicant was made by Campbell J. in his ruling of March 21, 2018, and thus the applicant is entitled to no costs in respect of her motion before Campbell J.
[77] Counsel for the parties were unable to come to an agreement on the question of costs for the motion to adjourn the trial. As such, counsel for Ms. Bello delivered her costs submissions on April 10, 2018; counsel for Dr. Veljanovski delivered his responding submissions on April 16, 2018; and counsel for Ms. Bello delivered her reply submissions on April 18, 2018.
Position of the Parties
[78] On the unsuccessful motion of the respondent husband for an adjournment of the trial, the applicant wife seeks her costs on a full recovery basis in the amount of $29,582.57, inclusive of fees, disbursements, and HST.
[79] The respondent husband argues that the applicant wife’s costs on the adjournment motion should be fixed in a reasonable amount in the range of $5,000 to $8,000.
Determination
[80] The applicant was the successful party in respect of the respondent’s unsuccessful motion to adjourn the trial. The applicant is entitled to her fair and reasonable costs of that motion.
[81] Costs must be proportional to the amount in issue and the outcome. I do not regard the claim of $29,582.57 for what was essentially a one-hour conference call motion to be either fair, reasonable, or proportional.
[82] In my view, the amounts claimed for a number of items in the applicant’s bill of costs are excessive. In this regard, I agree with and adopt as my own the submissions of counsel for the respondent as set out in paras. 9 and 10 of his submissions. I will not recite those submissions here.
[83] Counsel for the applicant also advanced a claim for the costs of trial preparation under the rubric of “costs thrown away.” Again, the applicant is entitled to only the costs of the respondent’s unsuccessful motion to adjourn the trial. She is not entitled to her costs of trial.
[84] Moreover, I note the agreement of the parties as reflected in para. 20 of the Minutes of Settlement executed as of March 23, 2018, as follows:
There shall be no costs for the negotiation of these Minutes of Settlement and/or any other costs in this proceeding, save and except for the costs that may be ordered by Justice Howard and Justice Campbell arising from the motions for an advance and adjournment, respectively. [Emphasis added.]
[85] Counsel for the applicant points to certain instances of alleged unreasonable conduct by Dr. Veljanovski in respect of both the motion and the proceeding as a whole as a reason for claiming full indemnity costs. I disagree. Put generally, I do not propose to engage in a review of the reasonableness of the conduct of the parties throughout this litigation. The truth of the matter, from my perspective of case management judge over the last three years, is that one could easily point to conduct on the part of both parties that may be said to have unnecessarily lengthened the conduct of this proceeding and increased its cost. As such, this is not a case where it would be appropriate to single out one side’s allegedly unreasonable conduct for enhanced costs sanction.
[86] I note that the applicant delivered an offer to settle on March 21, 2018, offering to accept payment of the amount of $10,000, all inclusive, in respect of the respondent’s motion for an adjournment of the trial. In my view, it was not unreasonable for the respondent to have rejected that offer. As such, I give little weight to the applicant’s offer in considering the costs of the motion.
[87] On balance, I tend to agree with the submission of counsel for the respondent, as reflected in para. 19 of his submissions, that the bill of costs submitted by the applicant appears to be a tactical attempt by the applicant to offset the costs of the respondent’s successful motion for the advancement of funds. In my view, the two motions are not comparable. I have taken the time to detail, above, some of the history of the motion for the advancement of funds. That motion required a full day of attendance in person in Windsor, including a half-day of argument. I recall that it was counsel for the applicant at the time who suggested that a motion of that nature required an in-person attendance. The motion followed a full day of questioning, which itself required another full day of attendance in person in Windsor, as well as the ordering of transcripts, and the delivery of factums and books of authorities. It involved preliminary objections raised by counsel for the applicant. Simply put, the motion for the advancement of funds and the motion for the adjournment of the trial cannot be considered equivalent in terms of costs and outcome.
[88] In my view, a fair and reasonable amount for the fees of the applicant on the motion to adjourn the trial on a partial indemnity scale is $7,500, inclusive of HST.
[89] I note that the $7,500 amount (inclusive of HST) I have allowed for fees to the applicant on a partial indemnity scale is more than the $7,263.66 amount claimed in the respondent’s bill of costs for fees, and disbursements (all inclusive of HST), on a substantial indemnity basis.
[90] The respondent does not challenge the reasonableness of the applicant’s claim for disbursements in the total amount of $131.38 (inclusive of HST).
[91] In all of the circumstances of the instant case, I find that the amount of $7,500 for fees (inclusive of HST) on a partial indemnity scale, together with $131.38 for disbursements (inclusive of HST) is, in the circumstances of the instant case, a fair and reasonable amount for the costs of the respondent’s failed motion to adjourn the trial, and I fix the applicant’s costs on that basis in the total amount of $7,631.38.
Summary
[92] On the respondent’s successful motion for the advancement of funds for payment of legal fees and disbursements from the moneys held in trust from the proceeds of sale of the matrimonial home, there should be payment by the applicant, Ms. Bello, to the respondent, Dr. Veljanovski, of his costs of the motion in the total amount of $22,967.05.
[93] On the respondent’s unsuccessful motion for an adjournment of the trial, there should be payment by the respondent, Dr. Veljanovski, to the applicant, Ms. Bello, of her costs of the motion in the total amount of $7,631.38.
[94] In the circumstances, I find it is appropriate to make a final disposition of the costs of the two motions before me by way of a set-off order.
[95] Accordingly, in respect of both the respondent’s successful motion for the advancement of funds for payment of legal fees and disbursements from the moneys held in trust from the proceeds of sale of the matrimonial home and the respondent’s unsuccessful motion for an adjournment of the trial, there shall be an order that the applicant, Ms. Bello, shall pay to the respondent, Dr. Veljanovski, his costs of the motion for the advancement of funds in the net amount of $15,335.67, within thirty days of the date hereof.
“original signed and released by Howard J.”
J. Paul R. Howard
Justice
Date: June 18, 2018
[^1]: Veljanovski v. Veljanovski, 2017 ONSC 6447 (S.C.J.). [^2]: Veljanovski v. Veljanovski, 2017 ONSC 6447 (S.C.J.). [^3]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^4]: Family Law Rules, O. Reg. 114/99. [^5]: Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 67, quoting Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126. [^6]: M. (A.C.) v. M. (D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181, 43 R.F.L. (5th) 149 (C.A.), at para. 40. [^7]: Watterson v. Canadian EMU, 2018 ONSC 301 (Div. Ct.), at para. 8 [^8]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, citing Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. See also 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 CanLII 35819 (ON CA), 82 O.R. (3d) 757 (C.A.), at para. 26. [^9]: Davis v. Fell, 2016 ONCJ 84, at para. 28, cited with approval in Talbot v. Talbot, 2016 ONSC 1351, 76 R.F.L. (7th) 370 (S.C.J.), at para. 7, per Templeton J., and Stephens v. Stephens, 2016 ONSC 1393 (S.C.J.), at para. 5, per Raikes J. [^10]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26. [^11]: M. (C.A.) v. M. (D.), at para. 42, quoting with approval Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330, 6 R.F.L. (5th) 430 (S.C.J.), at para. 4, per Aston J. [^12]: Continuing Record, vol. 6, tab 76. [^13]: Ms. Bello has retained and discharged a number of different lawyers over the course of this proceeding. By notice of change of representation dated May 12, 2015, Ms. Cheryl Goldhart, assisted by Ms. Maneesha Mehra, assumed carriage of the proceeding upon behalf of Ms. Bello; at that point, they were at least the third set of lawyers to be retained by Ms. Bello. By notice of change in representation dated February 10, 2017, Mr. Warren S. Fullerton assumed carriage of the brief on behalf of Ms. Bello. Mr. Fullerton argued the motions before me on October 23, 2017. By notice of change in representation dated February 9, 2018, Ms. Goldhart once again assumed carriage of the brief. Ms. Goldhart argued the motions before Campbell J. on March 21, 2018. [^14]: The amount claimed in respect of travel time was based on an hourly rate of $650. [^15]: The amount claimed in respect of the preparation of the amended answer was based on an hourly rate of $600. [^16]: See Riss v. Greenough, 2003 CanLII 2224 (ON SC), [2003] O.J. No. 1574, 37 R.F.L. (5th) 426 (S.C.J.), at para. 32 (where the offer was not signed by counsel), and Dunn v. Shaw, 2014 ONSC 3208 (S.C.J.), at para. 8 (where the offer was not signed by the party). [^17]: See, for example, Sepiashvili v. Sepiashvili, 2001 CanLII 25708 (ON SC), [2001] O.J. No. 3843 (S.C.J.), at para. 6; Rafanan v. Visouvath, [2001] O.J. No. 4261 (S.C.J.), at paras. 2-6; Fuda v. Fuda, 2011 ONSC 1452 (S.C.J.), at para. 20; Lafontaine v. Lafontaine, 2011 ONSC 3693 (S.C.J.), at para. 5. [^18]: Rafanan v. Visouvath, at paras. 2-6 [emphasis in original]. [^19]: Continuing Record, vol. 7, tab 93. [^20]: Children’s Law Reform Act, R.S.O. 1990, c. C.12. [^21]: Continuing Record, vol. 7, tab 95. [^22]: Continuing Record, vol. 7, tab 94. [^23]: Continuing Record, vol. 7, tab 97. [^24]: Continuing Record, vol. 7, tab 99. [^25]: Continuing Record, vol. 7, tab 96.