Court File and Parties

Court File No.: FS-17-0024-00 Date: 2019-03-19 Superior Court of Justice – Ontario

Between: A.R., Applicant Counsel: M. Cupello, for the Applicant

And: M.B. and E.B., Respondents Counsel: D. Taylor, for the Respondents

Heard: Via Written Submissions

Before: Mr. Justice T.A. Platana

Warning

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Decision On Costs

[1] On October 29, 2018, I released reasons finding that A.R. had no standing to apply for access to her natural child who had been adopted by the Respondents, who are the Applicant’s parents. That terminated the application. I invited counsel to make written submissions on costs.

[2] The successful Respondent submits that the application, when filed, was complex and important. This was an undeveloped area of law, and there was little precedent to rely on. He argues that despite previous negotiations, the Applicant was unsuccessful. He argues that in the course of the proceedings the Applicant, at times, served the Respondents with motions that were not properly set down, served motion materials late, or served motion materials and later did not proceed with the motion. Counsel argues that required additional and unnecessary time.

[3] Mr. Taylor notes Rule 24(1) and the criteria to be considered in awarding costs noted in Rule 24(11). Counsel submits that this case dealt with the most serious and important question about the best interests of a seven year old child, and the potential of emotional and physical harm to the child, as well as to her development.

[4] He refers particularly to an Offer to Settle made November 23, 2017, to request costs on a substantial indemnity basis. The Offer to Settle was that the parties return to the original arraignment for access exercised prior to the Applicant’s claim for access, visits to take place at the sole discretion of the Respondents, at the Respondents’ home and under their supervision. It included provision for access on special occasions. He notes that the Applicant brought a motion for access and involvement of the Office of the Children’s Lawyer (“OCL”) on December 20, 2017 at the return of a case conference. The access motion was adjourned on two occasions but was never heard or determined. The motion for appointment of the OCL was dismissed. Costs were awarded.

[5] Counsel submits that he had inquired whether the Applicant would attend for questioning in Fort Frances. That request was refused and counsel was required to travel to Thunder Bay. Further, given the practical difficulties of conducting a trial management conference by video for this important issue, counsel travelled to Thunder Bay where the Applicant’s counsel is situated.

[6] Each of three counsel for the Respondent have submitted Bills of Costs. Mr. Taylor requests fees of $27,982.50, plus HST of $3,637.72, and disbursements of $1,682.96 including HST. Mr. Taylor has 31 years of experience and shows an hourly rate of $350 for 79.95 hours. Disbursements include an amount of $1,071.74 for a transcription of questioning of the Applicant and $431.22 for travel to Thunder Bay on two occasions.

[7] Paul Brunetta has submitted a timeline and costs, showing 141.5 hours at $300 per hour, totaling $42,450, which includes time spent on motions in the course of the application. There is no indication as to his experience.

[8] Clare Brunetta has also submitted a timeline and costs for assisting co-counsel showing that he spent 21.5 hours, at $350 per hour, having 37 years experience. He notes he has “invested substantial time in the file in support of co-counsel but I am not claiming for this time.”

[9] In each case, the bills reflect an amount based on full recovery.

Applicant’s Submissions

[10] Mr. Cupello acknowledges that the Applicant was unsuccessful. He argues, however, that the Respondents are not entitled to anything approaching the quantum they are seeking for costs. He submits the amount is neither fair, nor reasonable, relying on Serra v. Serra, 2009 ONCA 395, and Boucher v. Public Accountants Council (2004), 71 O.R. (3d) 291, (C.A.).

[11] His submission is that at most nominal costs would be appropriate. Further, he requests that any order for costs should be stayed pending an appeal against the finding that the Applicant has no standing. He references the factors as set out in Rule 24(11). He submits that the issues were not complex. He argues that a biological parent should not be dissuaded from pursuing access to a biological child for fear of a costs award. He notes that the Respondent prepared limited court material, and cross-examined the applicant for a short period of time prior to the motion being argued.

[12] Mr. Cupello further cites Wease v. Naumann 2015 ONSC 5872 to submit that limited ability to pay is a factor. Her source of income is approximately $15.00 per hour working part-time at a grocery store, and receipt of Ontario Disability Support Plan Payments.

Discussion

[13] In Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.J.), Aston J. held that the concept of the two traditional scales of costs is no longer the appropriate way to quantify costs under the Family Law Rules. He stated that having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24(11), without any assumption about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v. D.M., [2003] O.J. No. 3707 (C.A.). At para. 40, Rosenberg J.A. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, but that they have not completely removed the court’s discretion. I note that Rule 24(11)(f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act, there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.

[14] The starting point in setting costs in family law matters is Rule 24(1):

24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

[15] Rule 24(10) provides that promptly after each step in the case the court should decide who, if anyone, is entitled to costs and should set the amount of costs.

[16] Rule 24(11) sets out the factors which must be considered in awarding costs:

(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 signatures of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.

[17] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[18] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at p. 302).

[19] In Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.) at para. 4, the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[20] While Boucher and Zesta Engineering are not family law cases, I accept that the principles enunciated above are applicable to family law matters.

[21] As the Court of Appeal noted in Serra v. Serra, “… costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties.” In considering the R. 24(11) factors, I note the following:

• While the matter was important to the parties, I do not consider that this was a particularly complex or difficult case. It was a clear issue involving the interaction of two pieces of legislation under the Child, Youth and Family Services Act and the Children’s Law Reform Act. The legislation was straightforward and required the meeting of a threshold test. Counsel has suggested that there was little case law which could be relied on, however, in my view, that does not overly complicate the issue.
• There was an element of unreasonableness on the part of the Applicant in bringing motions which were not dealt with, and motions which were brought outside the times stated in the Rules.
• Mr. Taylor has 31 years of experience and requests fees of $350 per hour. I find that rate reasonable. Paul Brunetta, co-counsel, seeks fees at the rate of $300 per hour. There is no indication in the Bill of Costs as to his experience. I would allow $250 per hour. Clare Brunetta, who has been in practice for 37 years, provides a timeline showing 21.5 hours at a rate of $350 per hour, in support of co-counsel. I find that rate reasonable. He does not claim for this time.
• Considering the hourly rates, Mr. Taylor seeks fees of $27,982.50 for 79.95 hours. Paul Brunetta, based on his requested rate, seeks $42,450 for 141.5 hours. As I noted earlier, these amounts are based on what appears to be a full recovery basis.
• The Respondents’ counsel collectively claim to have spent total time (including Clare Brunetta’s time) of approximately 241 hours, which includes two trips to Thunder Bay for Mr. Taylor, and one for Paul Brunetta.
• An analysis of the respective Bills of Costs suggests that there are times when both Mr. Taylor and Mr. Brunetta billed for attending at a teleconference, a motion and a trial management conference. I do not consider it necessary or reasonable for both to have attended.
• I consider a total of in excess of 241 hours spent on this file to be greatly excessive. There is no indication why co-counsel was necessary. Time is claimed for questioning and time is claimed for travel to Thunder Bay. There is nothing before me which indicated that questioning was necessary in light of the issue.
• The Respondents claim $1,546.34 for disbursements, including $1,005.44 for transcription of questioning referenced above. Without some basis for the necessity of a transcript, considering the narrow issue, I disallow the claim for transcription in the amount of $1,005.44.
• I accept the Applicant’s submission that Rule 24(11)(f) permits me to consider the financial condition of the Applicant in assessing costs against her as unsuccessful. Her source of income amounts to approximately minimum wage, under $15.00 per hour, working part-time at Metro and receipt of Ontario Disability Support Plan payments. Notwithstanding that I consider her financial position, I must still consider that the Respondents were put to significant cost in responding to the application. Costs must be “fair and reasonable” for both parties.

[22] The overriding principle of any costs award is one of reasonableness, and I must consider what I consider to be “fair and reasonable amount that should be paid by the unsuccessful applicant:” Serra v. Serra. The fees claimed by Mr. Taylor and Paul Brunetta total $70,432.50. That is not, in my view, a “fair and reasonable amount.”

[23] I consider that a reasonable and fair amount for the unsuccessful Applicant to pay the Respondents is $20,000.00 for fees, plus HST, and disbursements of $611.22, plus HST.

“original signed by” The Hon. Mr. Justice T. A. Platana

Released: March 19, 2019

COURT FILE NO.: FS-17-0024-00 DATE: 2019-03-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: A.R. Applicant

• and - M.B. and E.B. Respondents DECISION ON COSTS Platana J.

Released: March 19, 2019 /sab