Court File and Parties

BARRIE COURT FILE NO.: FC-13-167-01 DATE: 20181106 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Lynda Johnson, Applicant -and- Douglas Taylor, Respondent

BEFORE: The Honourable Madam Justice M.E. Vallee

COUNSEL: Susan Powell, for the Applicant Douglas Taylor, Respondent in person Douglas J. Manning, Office of the Children’s Lawyer

HEARD: In Writing

Costs Endorsement on Motion to Change

[1] This endorsement relates to the costs of a nine day hearing of a Motion to Change (MTC) in June and November 2017 with a subsequent attendance before me in August, 2018. Mr. Taylor was self-represented. Ms. Johnson had counsel. Mr. Taylor obtained an order for increasing parenting time to be supported and respected by Ms. Johnson. The order also contained other terms. The parties re-attended before me on August 2 and 10, 2018. At that time, Mr. Taylor obtained an order for overnight parenting in the Collingwood area. He claims costs of $25,919.14.

Background

[2] Some background is required to determine who the successful party is for the purposes of costs.

[3] The Order of Olah, J., dated October 23, 2014, set out a parenting schedule on consent. It provides that Mr. Taylor has alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. Mr. Taylor brought the MTC primarily because his parenting time with Haley and Megan had been significantly eroded. The length of the visits started to shorten in late 2015. No overnight visits occurred at Mr. Taylor’s home in Toronto in 2016 except for Christmas. He had to travel to Collingwood if he wanted to see the girls. His time with them diminished to part of one weekend day, every other weekend. Sometimes, he would not see the girls at all on his scheduled weekend. Make up time was difficult to arrange because the parties communicated poorly.

[4] Mr. Taylor wanted to resume his alternating weekends with the girls at his residence in Toronto. Most of the changes that he requested in his MTC related to re-establishing his parenting time. For example, he requested the following changes [1]:

(a) cancellation of parenting time for only documented medical reasons; (b) pre-approval of make-up time before any changes could be made to the parenting schedule; (c) more specific terms for summer holidays and FaceTime/Skype; (d) use of Our Family Wizard [2]; (e) reimbursement of $4,532 for a cancelled international holiday; (f) therapy for the girls for anxiety and stress regarding the parenting schedule; (g) a requirement that the girls use their proper surname, Taylor, rather than the mother’s surname, Johnson; and, (h) enforcement of the parenting schedule with assistance from the police if necessary.

[5] This hearing began in the first week of June, 2017. Then it was adjourned to the fall sittings. Mid-hearing, I requested assistance from the Office of the Children’s Lawyer which it kindly agreed to provide.

[6] The evidence disclosed that Ms. Johnson had not been supporting Mr. Taylor’s parenting time. In fact, on least one occasion, she scheduled activities for the girls in Collingwood on one of Mr. Taylor’s parenting weekends. Emails showed that she lacked insight with respect to the importance of the girls’ maintaining a healthy relationship with their father. In one, she stated, “why can’t you just let them do what makes them happy… It is their weekend, they work hard all week… They should be able to see their dance friends in action if they want… [3] It’s not about you.”

[7] The OCL report disclosed that a dynamic had evolved that placed the girls in the middle of the parents’ communication with respect to Mr. Taylor’s parenting time. Mr. Taylor’s parenting weekends became the subject of negotiation between him and the girls. The girls became in charge. At best, Ms. Johnson adopted a passive role. At worst, Ms. Johnson may have engaged in a subtle form of alienation by encouraging the girls to use her surname rather than their proper surname, Taylor. The MTC was the only way for Mr. Taylor to regain parenting time.

Applicable Legal Principles

[8] Costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants. Awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party. (See Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (ONCA)).

[9] A successful party is presumed to be entitled to costs. If a party does as well or better than a Rule 18 offer, that party is entitled to partial recovery costs up to the date of the offer and full recovery from the date of the offer going forward.

[10] In Topper v. Topper, 2012 ONSC 4617, paras 13 - 18 Wildman, J. set out comprehensively the principles relating to costs,

[13] The court expects litigants to try to avoid the expense and acrimony of a trial. The attempts that have been made to settle the case, even during the trial, are a big consideration in deciding who caused the necessity of the trial, and therefore who should pay for it. To reinforce the importance of offers, the court is directed to look at specific things in assessing reasonableness: the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; the reasonableness of any offers made; and any offer that the party withdrew or failed to accept.

[14] A “costs” award should compensate the winning party for reasonable costs, not every dollar or hour that he or she spent on the case. There is a concept of proportionality. The amount of time and money spent litigating must bear some connection to the amount that is realistically likely to be awarded to him or her. A person cannot expect the other side to compensate him or her for excessive preparation or trial time, having regard to both the realistic maximum value of the amount in dispute and the actual value of the claim as ultimately determined by the trial judge.

[15] Even a person who is acting for himself or herself may receive an award of costs, which may include a counsel fee. The purposes of a costs award are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants. If a person feels that he or she faces no exposure to costs if the other side is unrepresented, the last two aspects of a cost award would not be able to be met. That is why unrepresented litigants who are successful in obtaining a judgment from the court are sometimes awarded costs, even if they have not incurred the cost of paying a lawyer.

[16] Some of the principles that have been developed in considering the appropriate costs to award self-represented parties are as follows: (a) Self-represented parties may be awarded costs, including an award for a counsel fee. (b) A self-represented litigant does not have an automatic right to recover costs. The matter is fully within the discretion of the court. (c) The self-represented litigant is not entitled to costs calculated on the same basis as the litigant who retains counsel. (d) The self-represented litigant may be awarded costs for the time and effort he or she devoted to work ordinarily done by a lawyer retained to conduct the litigation, but should not recover costs for the time and effort that any litigant would have to devote to his case, such as attending in court in any event. (e) As a result of devoting the time and effort to work ordinarily done by a lawyer, the lay litigant must demonstrate that he or she incurred an opportunity cost by foregoing remunerative activity.

[17] The person deciding costs must consider certain things. They are: (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. The examples given in the Family Law Rules are preparing for trial, preparing witnesses, drafting documents including correspondence and orders, and arguing the trial; (e) expenses properly paid; (f) any other relevant matter.

[18] Costs should be decided at each step by the presiding judge. That means that I am not dealing with costs of the entire case, just the trial and the work that was not directly connected to another step of the proceedings, such as a motion or conference. I will be considering costs related to general work such as preparing pleadings and preparing for trial, as well as the cost of submissions, both for the trial and relating to this costs decision. If there were other attendances before another judge, I will not be considering them in my award of costs, unless the costs were specifically reserved to me.

Who is the Successful Party?

[11] Prior to the hearing, Mr. Taylor’s actual parenting time with the girls was very limited. At the conclusion of the hearing, he obtained an order for increasing weekend daytime parenting. He subsequently obtained an order for weekend overnight parenting in the Collingwood area. Without this hearing, only his limited parenting time for part of a day on alternating weekends would have continued. Possibly, that time would have eroded further.

[12] At the time of Olah, J.’s Order, the girls were 9 and 8 years old. At the time of hearing, the girls had not been on an overnight visit for approximately two-and-a-half years, except for Christmas in 2016. At the time of hearing, the girls were 12 and 11 years old. Although the girls’ best interests would be served by having a fulsome relationship with their father, an immediate return to alternating weekends as set out in operative order was not workable. A distance had developed in the relationship between the girls and their father. A gradual increase in parenting time was therefore appropriate.

[13] With this in mind, in my Order dated December 1, 2017, five hours of weekend parenting time, twice a month, was reinstated for four months. Specific parenting time over Christmas was set out. Ms. Johnson was required to respect and support Mr. Taylor’s parenting time. Ms. Johnson was ordered to use the girls’ proper surnames, to use the family Wizard for communications, and to reimburse Mr. Taylor in the amount of $4,532 for the cancelled vacation [4]. The parties were directed to attend before me in six months to review the parenting time.

[14] The parties re-attended on August 2 and 10, 2018. Mr. Taylor’s parenting time was going well. Again, based on a gradual return to overnight parenting, one of Mr. Taylor’s weekend parenting days was expanded to an overnight in the Collingwood area. The parties were directed to attend before me in November, 2018.

[15] I have no doubt that if Mr. Taylor had not brought the MTC, he would have almost no relationship with the girls. For this reason, from an overall perspective, he was the successful party at hearing.

Offers to Settle

[16] Ms. Johnson made one offer to settle dated November 27, 2017, the first day that the hearing resumed. With respect to parenting time, Ms. Johnson’s offer states in para. 4, “The respondent shall have parenting time with Haley and Megan every other Sunday from 12 p.m. to 4 p.m. in Collingwood unless otherwise agreed to by the parties.”

[17] Mr. Taylor made two Rule 18 offers to settle, one dated September 1, 2016 and the other dated April 15, 2017. The offers contained terms similar to the items that Mr. Taylor requested as set out above. Specifically, in the September 1, 2016 offer, Mr. Taylor offered to accept $3,000 for the cancelled vacation. In the offer dated April 15, 2017, Mr. Taylor offered to accept Ms. Johnson’s deposit of $1,500 into each of the girls’ registered education savings accounts in lieu of reimbursing him in the amount of $4,532 for the cancelled vacation.

[18] In his submissions, Mr. Taylor provided a chart setting out each issue, the parties’ positions at hearing, the relevant offers, the terms of the order and the successful party. While two issues, the makeup schedule for missed visits and the resumption of the residential schedule contained in Olah J.’s Order were adjourned, the outcome at hearing was equivalent to or better than Mr. Taylor’s offers. The offers meet the requirements of Rule 18(14). Accordingly, Mr. Taylor is entitled to partial recovery costs to the date of the first offer, being September 1, 2016, and full recovery costs after the date of the offer.

What are Mr. Taylor’s Costs?

[19] Mr. Taylor was self-represented throughout the hearing. He received some legal advice and services from Ms. D. Clark pursuant to a limited scope retainer. Her two accounts are included in the submissions. From February 2016 to December 2017 Mr. Taylor received 8.75 hours of advice and assistance. Aside from approximately 1.25 hours, most of the advice and assistance in this time period was provided after Mr. Taylor made the September 1, 2016 offer to settle. He was charged for 7.4 hours at a rate of $375 per hour which resulted in fees of $3,281.25 plus $426.56 for HST. Total disbursements including tax were $49.04. Altogether, the amount was $3,756.85. From January 29, 2018 to February 14, 2018, Mr. Taylor received 20 hours of advice and assistance. Most of this consisted of reviewing the judgment and preparing the costs chart, bill of costs and costs submissions. He was charged for 20 hours at $375 per hour which resulted in fees of $7,500 plus $975.04 HST. Disbursements including tax were $198.18. Ms. Clark has 32 years of experience. I find her hourly rate quite reasonable as well as the time charged.

[20] Although he did not specifically address loss of income opportunity caused by the hearing, there was ample evidence that Mr. Taylor is an electrician. He makes a good income. He is not claiming costs relating to loss of income for any days when he was absent from work for this hearing.

[21] Mr. Taylor kept track of the hours that he spent on this matter. He states in his Bill of Costs that he spent 58 hours up to the date of the offer, September 1, 2016. This was for preparation of pleadings including the MTC and the Change Information Form with 23 attached documents. It also included preparation of the parenting affidavit which was detailed and included a number of exhibits. It further included receiving and reviewing Ms. Johnson’s response to the MTC, preparing an updated affidavit with exhibits and an updated financial statement with related disclosure. Mr. Taylor set an hourly rate for himself of $100. This results in $5,800. On a partial recovery basis, he requests $3,866.67. Ms. Clark provided 1.25 hours of advice and services at $375 per hour which results in $468.75. On a partial recovery basis, Mr. Taylor requests $312.50.

[22] Mr. Taylor states that he spent 30 hours in preparation for the MTC which included preparing a brief and a financial statement. This results in $3,000. On a partial recovery basis, Mr. Taylor requests $2,000. After adding $803.29 for HST, the total partial indemnity amount requested is $6,982.46. I note that there is no mention in the trial scheduling endorsement or the update of Justice Graham that costs of these attendances are reserved to the hearing judge. Accordingly, for the reasons set out above, I cannot consider a request for these costs [5].

[23] I note that HST is calculated on the entire amount of Mr. Taylor’s time and Ms. Clark’s time. It is only applicable to Ms. Clark’s time. Mr. Taylor is not a lawyer. He was not billing a client for his representation. He has no obligation to remit HST with respect to the time that he spent on his own legal proceeding. Therefore, the amount of $803.29 is not allowed. The correct amount of HST on Ms. Clark’s fees of $312.50 is $40.63.

[24] Mr. Taylor states that he spent 80 hours in preparation for the hearing which included preparing document briefs, an opening statement brief, his evidence in chief which was by way of an affidavit, and cross-examination of Ms. Johnson. He also reviewed document briefs and carried out daily preparation for the next hearing day.

[25] At his $100 hourly rate, this results in $8,000. On a full recovery basis, Mr. Taylor claims $6,800. As noted above, Ms. Clark assisted him with the preparation of costs submissions, a bill of costs, the issues chart and the relevant authorities. She spent 27.5 hours at $375 an hour which results in $10,312.50. On a full recovery basis, Mr. Taylor requests $8,765.63. Altogether, taking into account his own time and Ms. Clark’s fees, Mr. Taylor requests $15,565.63. After including $2,023.53 for HST, the total is $17,589.16. Again, the amount claimed for HST has been calculated on Mr. Taylor’s time which is incorrect. The correct amount calculated on Ms. Clark’s time is $1,139.53. Mr. Taylor claims disbursements of $1,347.52 including HST.

[26] The challenge in determining costs for self-represented individuals is that they spend much longer doing the work, in contrast to the time spent by a lawyer, because they do not have legal training. Mr. Taylor’s documents were very well prepared and organized. I am not surprised to see that he spent many hours working on them. He also spent a considerable amount of time preparing his cross-examination of Ms. Johnson. This was evident in court. The cross-examination was carried out in a methodical and organized manner similar to what one would expect of a lawyer. Although the subject of the hearing was very sensitive and upsetting, Mr. Taylor maintained the demeanour of a dispassionate advocate which assisted the court.

[27] Although I am not required to consider the Rule 24(11) factors because the outcome was as good or better than Mr. Taylor’s Rule 18 offer, I make the following observations. The issues in this matter were very important. It is hard to imagine what could be more important than a parent’s maintaining his relationship with his children. Ms. Johnson acted unreasonably in failing to respect and support Mr. Taylor’s parenting time. Although Ms. Johnson and Mr. Taylor had great difficulties communicating and at times each took unreasonable positions with the other on various issues outside of the MTC, Ms. Johnson’s view that these young girls should determine when and where they wish to see their father necessitated the MTC.

[28] At the beginning of the hearing, Mr. Taylor was not in compliance with an order that required him to obtain life insurance and designate Ms. Johnson as the irrevocable beneficiary. Mr. Taylor refused to obtain the life insurance based on his view that his estate would properly provide for the girls in the event of his death. At the outset of this hearing, Mr. Taylor was advised that because of his failure to obey an order, pursuant to Rule 1(8), the court could strike out his MTC or make an order that he was not entitled to any further order, among other things. Mr. Taylor purchased the required insurance quickly.

[29] Mr. Taylor spent considerable time and effort on work ordinarily done by a lawyer, including preparing for hearing, drafting his documents and organizing his exhibits; however, the hours that he spent doing this are somewhat excessive. He wisely obtained counsel to prepare his bill of costs and submissions. He provided invoices for the disbursements incurred, most of which relate to process serving and photocopying, which are reasonable expenses.

Conclusion

[30] A costs award should reflect what the court views as a fair and reasonable amount to be paid by the unsuccessful party rather than an exact measure of the actual costs incurred by the successful litigant. Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. See Boucher v. Public Accountants, 71 O.R. (3d) 291.

[31] Taking all of the above into account, in my view, a fair, reasonable and proportionate costs award for this MTC is $18,000, all inclusive, which Ms. Johnson shall pay to Mr. Taylor within 30 days.

VALLEE, J. Released: November 6, 2018

Footnotes

[1] This is not a comprehensive list. [2] Which Mr. Taylor had set up in October 2014) for all communications. [3] There was a dance show in Collingwood on Mr. Taylor’s parenting weekend. The exchange between Ms. Johnson and Mr. Taylor related to his wanting to have the girls for the scheduled weekend and her not understanding why Mr. Taylor was opposed to their staying in Collingwood to attend the show. [4] Other orders were also made. [5] If Mr. Taylor can demonstrate that these costs were in fact reserved to the hearing judge, I will reconsider them.