Court File and Parties

KINGSTON COURT FILE NO.: 379/17 DATE: 20190530 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: W., Applicant AND: K., Respondent

BEFORE: Justice A. C. Trousdale

COUNSEL: Counsel on the Motion: Jane Thurber Current counsel: Karla McGrath and Linda Smith, Counsel for the Applicant Peter M. Callaghan, Counsel for the Respondent

HEARD: In chambers

Costs Endorsement

[1] On October 28, 2018 I heard a motion by the Applicant requesting DNA paternity testing of the Respondent. I released my decision on December 28, 2018. I indicated each party could make written costs submissions. The parties did make written submissions but the Respondent objected to the Applicant’s reply submissions as being improper reply material. I issued a Preliminary Endorsement on Costs on March 26, 2019 and gave the parties an additional opportunity to file further submissions on one issue which both parties did.

[2] The Applicant is seeking full indemnity costs of $6,849.70 being $6,780.00 for fees including HST and $69.70 for disbursements inclusive of HST on the motion by the Applicant regarding DNA testing of the Respondent. The Respondent submits that costs payable to the Applicant should not exceed $2,500.00.

Positions of the Parties

[3] The Applicant argues that she is entitled to costs as she was the successful party on the motion. She submits that the Respondent acted in bad faith in refusing to have the issue of paternity determined on the best evidence available, being DNA paternity testing.

[4] The Respondent’s position is that he did not act in bad faith. He argues that the Applicant has acted in bad faith in refusing to attend for questioning, and in refusing to produce any medical, counselling or schooling records for the child, as well as being mistaken about the surname of a person who could apparently corroborate the Applicant’s summary of events.

[5] The Respondent submits that the hourly rate claimed by the Applicant’s counsel is too high as the Applicant has disclosed that she is legally-aided. The Respondent submits that the costs awarded to the Applicant should be partial indemnity costs and that the Applicant’s costs of the motion should not exceed the amount of $2,500.00.

Rule 24 of the Family Law Rules

[6] Rule 24 of the Family Law Rules deals with the issue of costs. Subrule 24(1) provides that there is a presumption that a successful party is entitled to costs.

[7] The Applicant was successful in obtaining an order granting leave to her to obtain a DNA test of the Respondent for the purpose of determining if the Respondent is the biological father of the Applicant’s son.

[8] Subrule 24(12) provides that in setting the amount of costs, the court shall consider the reasonableness and proportionality of a number of factors as they relate to the importance and complexity of the issues which I will now consider on the facts of this matter.

The importance, complexity or difficulty of the issues in this proceeding

[9] The issues in this proceeding were very important to both the parties. There was some legal complexity to the issues involved including the Respondent’s arguments regarding the Respondent’s privacy, the issue of the child’s consent under the Health Care Consent Act, 1996 and the issue of whether the Respondent could be ordered to comply with DNA paternity testing.

Each party’s behaviour

[10] If the Respondent wished to question the Applicant or request production of documentation regarding the child, he could have brought a motion to request that relief, but no such motion was brought.

[11] I did not make a finding of bad faith with respect to either party in my endorsement on the motion, and I do not make such a finding here.

Time spent by each party

[12] The Respondent does not take issue with the time spent by the Applicant’s counsel on this matter although he disputes the hourly rate charged by the Applicant’s counsel. In addition, he argues that the Applicant’s counsel did not provide any documentation to support the fees and expenses claimed by her such as time dockets or invoices for out-of-pocket expenses claimed by her. The Applicant did file a Bill of Costs which shows 20 hours of work on this file which included 7 hours at court on the day of the hearing on October 23, 2018 due to circumstances beyond the control of the parties.

[13] The Bill of Costs also included 1 hour at court on the original date for the hearing of this motion on September 17, 2018 which was adjourned at the request of the Respondent because he was served with an affidavit of the Applicant sworn September 10, 2018 containing new information to which he wanted to respond. The request for adjournment was allowed and the matter was re-scheduled for October 23, 2018. However, the Respondent, never did file a responding affidavit to the Applicant’s affidavit sworn September 10, 2018.

[14] Upon reviewing the Bill of Costs filed by counsel for the Applicant, I find that the time spent by the Applicant’s counsel was reasonable.

Written offers to settle

[15] The Respondent did not file a written offer to settle this motion. The Applicant had filed a written offer to settle this motion, but at the hearing of this matter, I made a ruling confirming the agreement of the Applicant’s counsel that the Applicant would not refer to the offer to settle in question on the issue of costs of this motion. Accordingly, in effect, there was no written offer to settle by either party regarding this motion.

Legal fees

[16] It became apparent in the Applicant’s costs submissions that the Applicant was legally-aided. The Applicant claimed costs at the rate of $300.00 per hour for her counsel who was called to the Bar in 2000.

[17] The Respondent argues that the Applicant is not entitled to full or substantial indemnity costs on this motion. He also submits that the fee arrangement between the Applicant and her counsel should be disclosed as counsel should not recover on a partial-indemnity basis at a higher hourly rate than that charged to their client so that the court does not inadvertently award the equivalent of costs on a substantial indemnity basis. The Respondent submits that the court should not exercise its discretion to award an amount in excess of what was charged to legal aid.

[18] The Applicant submits that when a client is legally-aided, the only relevant billing rate is that of the private rate of the solicitor. In the case of Ramcharitar v. Ramcharitar et al.; Legal Aid Intervenor, 2002 ONSC 53246, 62 OR (3d) 107 Wein, J., stated at paragraph 25:

Nonetheless in accord with the existing authority I find that s. 46 of the Act was and is specifically intended to obviate the indemnity principle in Legal Aid. There is nothing unfair about this interpretation. There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced.

[19] Further at paragraph 29 of Ramcharitar, Wein, J. stated:

In the circumstances of a legally aided client, since costs should be assessed as if Legal Aid had not been applicable, there is no need for any fee arrangement between the client and Legal Aid Ontario to be disclosed, and no basis upon which the statutory extension of the solicitor/client privilege granted by the Legal Aid Service Act should be overridden.

[20] Accordingly, I find that there is no need for any fee arrangement between the client and Legal Aid to be disclosed. I find that the relevant billing rate to determine costs in the case before me is the private rate of the solicitor.

[21] As the Respondent did not file a Bill of Costs nor indicate the hourly rate of his counsel, it is not possible for me to compare the legal costs and disbursements of the Respondent on this motion with the legal costs and disbursements claimed by the Applicant on this motion.

[22] The private hourly rate of the Applicant’s counsel is $300.00 per hour. I find that rate to be reasonable for counsel with 18 years of experience.

Any expert witnesses

[23] There were no expert witnesses.

Any other expenses properly paid or payable

[24] The disbursements claimed by the Applicant consisted of photocopies, faxes, and a courier charge to deliver the Factum, plus HST on the fees and disbursements. I find all of these expenses to be reasonable.

Any other relevant matter

[25] I am not aware of any other relevant matter.

Conclusion

[26] The Applicant was successful on the motion. Rule 18 regarding offers to settle which may result in full indemnity costs has no applicability in this case as there were no offers to settle to consider in fixing costs of this motion.

[27] In the case of Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal summarized the general legal principles regarding costs orders in family law proceedings. At paragraph 10 of Mattina, the Ontario Court of Appeal set out the four fundamental purposes that modern family cost rules are designed to foster as follows:

(1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) pursuant to Rule 2(2) of the Family Law Rules, to ensure that cases are dealt with justly.

[28] To those four fundamental purposes, the Court of Appeal added a reference to Rule 24(12) which specifically emphasizes “reasonableness and proportionality” in any costs award.

[29] At paragraph 15 of Mattina, the Court of Appeal stated:

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[30] Based on my not finding unreasonableness or bad faith on the part of either party, and there being effectively no offer to settle to beat, I find that the Applicant is entitled to partial indemnity costs on this motion.

[31] Taking into account all of the aforesaid factors, and in the exercise of my discretion, I find that it is fair and reasonable in all of the circumstances of this particular case that there be an order that the Respondent pay costs to the Applicant fixed in the sum of $4,500.00 inclusive of fees, disbursements and HST.

Order

[32] Order to go accordingly.

Justice A. C. Trousdale Released: May 30, 2019