COURT FILE NO.: FC-11-1451-4
DATE: 2019/07/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Roxanne Hamilton, Applicant
AND
Patric Saint Denis, Respondent
BEFORE: Justice Linhares de Sousa
COUNSEL: Mimi Marrello, counsel for the Applicant
Deborah E. Bennett, counsel for the Respondent
HEARD: In Writing (at Ottawa)
DECISION ON COSTS
[1] I have now had the opportunity to read the parties’ written submissions on costs. There were two main issues raised on this motion. The first concerned the interest and payment of a judgment order that formed part of the divorce order of the parties granted by Kershman J., dated May 21, 2013. The second related to a variation of Mr. Saint Denis’ obligation to pay spousal support based on his substantial post-separation increase in income.
[2] In coming to my decision on costs, I am cognisant of the fundamental purposes of cost awards as set out in the Ontario Court of Appeal decision, Serra v. Serra 2009 ONCA 395 which are:
• to partially indemnify successful litigants for the cost of the litigation;
• to promote settlement of litigation; and
• to discourage and sanction inappropriate behaviour by litigants.
[3] With respect to these two issues, examining the case, globally, success was clearly divided. However, in my view the circumstances of this case demand a more nuanced examination of the so-called “divided success” on the two principal issues. There is no question that this whole and lengthy litigation was as a result of Mr. Saint Denis’ still unexplained and unjustifiable default on the judgment order of Kerhman J. In response to his default, Ms. Hamilton, as the record will show, pursued improper proceedings and made, in my view, exorbitant interest and payment demands, which effectively sought to re-negotiate an originally, perhaps, bad deal for her. Mr. Saint Denis’ response to this issue was equally unacceptable and incipit in terms of remedying the wrong he had caused Ms. Hamilton by his still unexplained and unjustifiable default. Neither of the parties fully succeeded on their respective claims as advanced by them on the motion. Nonetheless, I must conclude that Ms. Hamilton was successful in obtaining the interest to which she was entitled, in keeping with the intention and spirit of the judgment order as well as on the full payment immediately of the balance owed by Mr. Saint Denis on the judgment order, which, for the reasons explained by me in my order was fitting in the face of a breach of a court order and original contract between the parties. She also succeeded in having the amount enforced by FRO, as it clearly related to the satisfaction of a support order. In my view, although Ms. Hamilton did not claim full success on this issue, she should receive some contribution to her costs on it, given the success she did receive, pursuant to R. 24(1) and (6).
[4] With respect to the second issue, Ms. Hamilton was not successful on the range of spousal support she claimed pursuant to the Spousal Support Advisory Guidelines, for the reasons stated in my motion decision. However, she succeeded in having the Spousal Support Advisory Guidelines applied to the facts of this case, against which it was strongly argued on Mr. Saint Denis’ behalf. Furthermore, Ms. Hamilton succeeded in having her ongoing spousal support substantially and appropriately increased for the reasons given. I must conclude, with respect to this issue that Ms. Hamilton, while not completely, was substantially successful and ought to have a contribution to her costs, pursuant to R. 24(1) and (6).
[5] The Rules provide that a party who is presumptively entitled to costs, based on the success of issues, may be denied costs if their conduct, during the litigation justifies it. This necessarily requires considering whether either party made a genuine effort to settle the matter by way of offers to settle.
[6] Firstly, I state at the outset that there is no evidence before me to conclude that either party to this litigation acted in bad faith, which is a very high onus to meet. Clearly, both parties were still immersed in their historical spousal conflict and, no doubt, genuinely convinced of the rightness of their legal positions. This may also explain why neither party made any formal offer to settle for the consideration of the court. That was unreasonable on both their parts. Mr. Saint Denis’ long overdue and insufficient attempt to settle the issue of his default on the judgment order via his letter, dated January 15, 2015 can hardly be considered a reasonable one, particularly in view of the motion results.
[7] The Court next considers the factors found under Rule 24 (12). The issues on this motion were no doubt important to the parties involved. In my view, the issue of the judgment order and the just resolution of that issue was not particularly complex, although there were some procedural issues of enforcement that arose and were pursued on this issue. The issue of spousal support, in the circumstances of post-separation income increases, was perhaps a little more complex and required the examination of some, at times, difficult and detailed jurisprudence.
[8] No issue was taken with the lawyers’ rates. Counsel for Ms. Hamilton has provided her bill of costs and claims substantial indemnity costs of $20,000.
[9] Counsel for Mr. Saint Denis takes issue with the number of hours billed by Ms. Hamilton’s counsel, claiming to have expended approximately half the hours billed by Ms. Hamilton’s counsel. She has not provided a copy of her own bill of costs, and the total amount she has billed Mr. Saint Denis. She has however, given her rate ($295 per hour) and the total number of hours spent on the motion (19.4 plus 8) and the total cost of disbursements and HST ($459.23), which amounts to an approximate total amount of $8,542. In the face of counsels’ submissions and in the circumstances of this case, I am not prepared to second guess the number of hours billed by any one of the counsel.
[10] The Ontario Court of Appeal, in Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) clearly stated that the determination of costs is not a mere mathematical calculation of hours and rates. The court must attempt to reach a just result considering the issues, the conduct of the parties and what a litigant could reasonably expect to incur on a costs award.
[11] Based on all of the above, I come to the conclusion that Ms. Hamilton is entitled to a contribution to her costs, based on her success on the issues, although limited. I therefore order Mr. Saint Denis to pay Ms. Hamilton’s costs that I fix in the amount of $10,000.00 payable within 60 days.
Linhares de Sousa J.
Date : July 5, 2019
COURT FILE NO.: FC-11-1451-4
DATE: 2019/07/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Roxanne Hamilton, Applicant
AND
Patric Saint Denis, Respondent
BEFORE: Justice Linhares de Sousa
COUNSEL: Mimi Marrello, counsel for the Applicant
Deborah E. Bennett, counsel for the Respondent
DECISION ON COSTS
M. Linhares de Sousa J.
Released: July 5, 2019