Court File and Parties

Court File No.: FS-16-86157-00 Date: 2018-11-06 Ontario Superior Court of Justice

Between: VIDOLL AUGUSTINE REGISFORD, Applicant Counsel: Lance Carey Talbot, for the Applicant

- and -

LORAINE MARCIA REGISFORD, Respondent Counsel: Adam N. Black, for the Respondent

Heard: January 17, 2017, at Brampton, Ontario

Before: Price J.

Costs Endorsement

NATURE OF MOTION

[1] The parties have been unable to resolve the issue of how much costs Mr. Regisford should pay to Ms. Regisford arising from his unsuccessful motion to terminate the spousal support he was required to pay to Ms. Regisford pursuant to an Order made by this Court in July 2016. Ms. Regisford opposed the motion on the basis that it was premature. This Court agreed and dismissed the motion on January 20, 2017. These reasons will address the issue of costs.

BACKGROUND FACTS

[2] Mr. Regisford brought a motion to terminate the spousal support of $5,000 per month payable to Ms. Regisford pursuant to the Order of Justice André dated July 13, 2016. Ms. Regisford opposed the motion on the basis that it was premature. Mr. Regisford continued to receive income from his previous employer and would continue to do so for more than two months. Ms. Regisford’s lawyer proposed on January 11, 2017, that the motion be adjourned until a date closer to the end of March, when his income from his previous employment ceased. Mr. Regisford rejected this proposal and proceeded to a hearing of the motion on January 17, 2017.

[3] This Court released its reasons on January 20, 2017. It agreed that the motion was premature and dismissed it on that basis. Ms. Regisford was wholly successful on the motion and is presumptively entitled to her costs. The only issue is the amount of the costs that should be paid.

ISSUES

[4] The only issue the Court must determine is the amount of costs Mr. Regisford should pay to Ms. Regisford.

PARTIES’ POSITIONS

[5] Ms. Regisford submits that she was successful in the motions and is presumptively entitled to her costs. She submits that it was unreasonable for Mr. Regisford to bring his motion when he did, and in failing to make it clear from the outset that his severance would continue until the end of March 2017. Ms. Regisford achieved an outcome that mirrored her Offers to Settle and she seeks her costs on a full recovery basis in the amount of $16,848.71, inclusive of disbursements and HST.

[6] Mr. Regisford submits that costs should be allowed at $5,500.00, inclusive of HST and disbursements, based on 10 hours preparation and the actual 5.5 hours attendance, allowing for 1.5 hours for travel. Disbursements, he argues, should be fixed at $400.00.

ANALYSIS AND EVIDENCE

a) General principles

[7] A successful party is presumed to be entitled to his or her costs, pursuant to Rule 24(1) of the Family Law Rules. The preferable approach in family law cases is to allow costs on a full recovery basis, provided the successful party acted reasonably and the costs claimed are proportional to the issues and results and were within the range that the opposing party should have expected if unsuccessful in the motions. [1] Mr. Regisford does not dispute the fact that Ms. Regisford is entitled to full recovery of her costs.

[8] Costs Orders are designed to achieve three principal purposes, (a) to indemnify successful litigants; (b) to sanction unreasonable conduct of the litigation; and (c) to encourage settlement. [2]

[9] A litigant whose conduct was reasonable and who is successful in a proceeding should not be required to bear the costs of having his rights tested. [3] However, an unsuccessful litigant should not be so heavily burdened with costs as to discourage other litigants from submitting issues to the court where the outcome is not a foregone conclusion that the parties should have anticipated.

b) Scale of costs

[10] Ms. Regisford argues that Mr. Regisford’s conduct was unreasonable in that he brought his motion almost three months before the income change that constituted the material change of circumstances he relied upon in support of the motion. He refused to consent to an adjournment to a date more proximate to the termination of his income. The motion was dismissed on the ground that it was premature.

[11] It is not always unreasonable for a spouse, payor or recipient, to move for a variation of support in anticipation of a change in income that is imminent and certain to occur. Whether such a motion will succeed depends, in part, on the potential consequences of waiting until the change in income occurs. In the present case, the Court concluded that the motion was premature, but it was a close call and one that could not necessarily have been anticipated.

[12] Ms. Regisford responded to the motion premised on the expiration of Mr. Regisford’s severance pay in March. Mr. Regisford served a new Notice of Motion dated December 21, 2016 and did not update the relief claimed based on the extension of his severance pay to the end of March. Mr. Regisford’s lawyer sent an email on January 11, 2017, the day after delivering a Factum, and stated: “Although my client will receive severance until the end of March”.

[13] It was not until Mr. Regisford delivered his Reply Affidavit that he provided relevant information which had been in his possession for nearly one month. I agree with Ms. Regisford’s submission that Mr. Regisford failed to comply with his obligation pursuant to Rule 13(15) of the Family Law Rules, which provides:

As soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.

[14] As Ms. Regisford fairly acknowledges, Mr. Regisford corrected his lapse. It did not rise to the level of Bad Faith. I do not regard it as sufficient to justify full recovery costs.

[15] I have considered Ms. Regisford’s Offer to Settle in the context of Rule 18(4) of the Family Law Rules. [4] According to Justice Pazaratz in Jackson v. Mayerle (2016):

To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. [5]

[16] I am satisfied that Ms. Regisford did as well as her Offer to Settle. However, she has not provided a breakdown of the time spent before she delivered her Offer and the time spent afterward. In these circumstances, I am prepared to allow a substantial indemnity scale for the costs of the hearing, but not the costs of preparation, pursuant to Rule 18(4).

[17] The next step in determining costs payable is a consideration of the factors in costs as set out in Rule 24(11) of the Family Law Rules [6] which provides the following:

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.

c) Importance and complexity

[18] The issues in this case were not complex. They did not justify the two hours spent in oral argument. The issues were imputation of income to the Respondent, and whether spousal support should continue to be payable by the Applicant before his severance pay runs out. These were not legally complex issues and no unique facts made them unusual and out of the ordinary. I agree with Mr. Regisford that no extra research should have been required other than reviewing the leading case law on these issues to refresh counsel on the law.

[19] The materials prepared reflect the relatively simple nature of the issues. The Respondent's affidavit was only 9 pages long, not including attachments. Much of the affidavit was a repetition of her Answer (Form 10). An entire page of the affidavit (page 6) was devoted to irrelevant information about Mr. Regisford’s alleged infidelity during the relationship that was apparently included to colour the facts.

[20] The Factum was 12 pages in length, of which only 4 were arguments and discussion of the law. The first 8 pages were a repetition of Ms. Regisford’s affidavit. The brevity of the Factum reflects the fact that Motion was not legally complex. More of the preparation could have been delegated to an experienced Law Clerk.

[21] The issue was of importance to the parties in that if Mr. Regisford had been successful in terminating support, Ms. Regisford would have been left unable to support herself. The issues did not involve matters of public importance.

d) Hourly rates

[22] Ms. Regisford’s counsel, Mr. Black, was called to the Bar in 2009 and had practiced family law for 8 years when the motion was heard. He was assisted by his Law Clerk of 15 years. Based on the Information for the Profession Bulletin issued that year by the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which can be found immediately before Rule 57 in the Carthy or Watson & McGowan edition of the Rules, which sets out maximum partial indemnity hourly rates for counsel of various levels of experience, Mr. Black was entitled to claim a maximum hourly rate of $225 in 2005. Adjusted for inflation, that amounted to $271.49 in 2017, which I round down to $270.00. His Law Clerk was entitled to a maximum hourly rate of $80.00 in 2005 which, adjusted for inflation, amounted to $96.53. I round that amount up to $100.00.

[23] On a substantial indemnity scale (using the multiple of 1.5 prescribed by Rule 1 of the Rules of Civil Procedure, [7] and applied to the present proceeding under the authority of Rule 1(7) of the Family Law Rules, [8] the partial indemnity rates allowable for Mr. Black and his Law Clerk translate to $405 for Mr. Black and $150.00 for his Law Clerk. Courts have estimated substantial indemnity costs to be approximately 90% of costs on a full recovery basis. [9]

e) Time reasonably spent on the motion

[24] Mr. Black claims an hourly rate of $390 in 2016 and $400 in 2017. He claims $250.00 per hour for his Law Clerk. His Law Clerk’s hourly rate should be reduced by $100 per hour, for a total of $350.00. Mr. Black delegated some tasks to his Law Clerk to reduce costs, but arguably could have done more in this regard. His Law Clerk spent only 3.5 hours, compared to 29.3 hours spent by Mr. Black.

[25] The court must also look at the reasonable expectation of the unsuccessful party in paying costs. The principle of reasonableness must not be ignored in the assessment of costs. The Court of Appeal for Ontario in Boucher v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579 expressed the principle as follows:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties. [10]

[26] I find that 14 hours, consisting of 7 for the hearing and 7 in preparation, was reasonable in the circumstances. I allow 1.5 hours for travel. 7 hours at Mr. Black’s partial indemnity rate of $270.00 and 7 hours at a substantial indemnity scale of $405.00 per hour amounts to ($1,890.00 + $2,835.00) translates to $4,725.00.

[27] The amount claimed for disbursements is high. $217.20 is claimed for reproduction of documents, $130.80 for document scanning, $174.30 for laser copies, and $12.00 for colour copies. On a motion like this one, these amounts are excessive. Having regard to the $231.39 charged for process serving, which is reasonable, I agree with Mr. Regisford that $400.00 for disbursements is reasonable.

CONCLUSION AND ORDER

[28] For the foregoing reasons, it is ordered that:

Mr. Regisford shall pay Ms. Regisford’s costs in the amount of $5,791.25, inclusive of HST and disbursements, calculated as follows: a) $4,725.00 Fees b) $614.25 HST c) $400.00 Disbursements d) $52.00 HST on disbursements
Mr. Regisford shall pay pre-judgment interest on the above costs at the rate prescribed by the Courts of Justice Act from January 20, 2017, to the date of this Order, and post-judgment interest thereafter.

Price J. Released: November 6, 2018