BRACEBRIDGE COURT FILE NO.: FC-18-187-00

DATE: 20190801

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Paul Bastedo, Applicant

-and-

Maxine Bastedo, Respondent

BEFORE: The Honourable Madam Justice M.E. Vallee

COUNSEL: Mr. D. Winnitoy and Ms. M. Goodman, for the Applicant

Maxine Bastedo, Self-Represented

HEARD: In Writing

Costs ENDORSEMENT

Introduction

[1] This matter concerns a five-day trial in which the applicant, Dr. Bastedo, brought a Motion to Change, requesting termination of spousal support in the amount of $2,197.13 and the related life insurance obligation. Dr. Bastedo was three months short of retirement when he brought the motion. The respondent, Ms. Bastedo, claimed retroactive spousal support to be satisfied by lump-sum payment of $150,000, an increase in the amount of spousal support paid from $2,197.13 to $10,000 per month commencing on June 1, 2019 and an order that this spousal support continue indefinitely. In closing submissions, on the final day of trial, Ms. Bastedo abandoned her claims and stated that she was only requesting that the existing spousal support continue.

[2] My Reasons were released on May 24, 2019. Dr. Bastedo had paid spousal support up to May, 2019, five months post-retirement. I ordered Dr. Bastedo to pay step-down spousal support amount to Mrs. Bastedo until September 2019, after which the support and the related life insurance obligation were to be terminated.

Rule 24

[3] Rule 24(1) of the Family Law Rules O. Reg. 114/99 creates a presumption of costs in favour of the successful party. Dr. Bastedo was substantially successful in this matter. Rule 24(12) sets out certain factors that the court shall consider in setting costs amounts. It states that the court must consider the reasonableness and proportionality of each of the factors as they relate to the importance and complexity of the issues.

The Behaviour of the Parties

[4] Dr. Bastedo presented his case in a straightforward manner. Unfortunately, Ms. Bastedo did not. Much of her evidence focused on the nature of the parties’ separation back in 1994 and the challenges that she faced raising four children as a sole parent. She submitted that she was entitled to indefinite spousal support because the separation was difficult for her. This is not the test that the court applies in determining whether spousal support ought to be terminated. This court repeatedly stated to Ms. Bastedo, during her testimony, that it had grave concerns that she was not providing appropriate evidence as to why the support should be continued because she continued to focus on the nature of the separation 25 years ago. Despite this, she persisted in using court time to provide irrelevant evidence, including the evidence of a friend, Ms. Beacom, which was solely focused on the breakdown of the marriage. Ms. Bastedo was resolute in advancing untenable claims. Her refusal to be guided by the court is very unfortunate.

[5] After four days of trial in which Dr. Bastedo was required to respond to her claims of retroactive support, and payment of significantly increased support indefinitely, Ms. Bastedo withdrew these claims. As noted above, in the end, her position was only that the spousal support, as originally ordered, should continue. Had this been her position at the beginning of the trial, only half the amount of time would have been required for the trial.

The Time Spent by the Parties

[6] Ms. Bastedo was unrepresented. Upon review of Dr. Bastedo’s Bill of Costs, I find that the time spent by his counsel in bringing the Motion to Change and conducting the trial is reasonable.

Offers to Settle

[7] The parties made offers to settle; however, none of them attract costs consequences.

Legal Fees, Number of Lawyers and Rates

[8] Dr. Bastedo’s counsel, Mr. Winnitoy, conducted the trial with an associate, Ms. Goodman. Her primary function appeared to be notetaking. No time was billed for her attendance. Approximately 37% of the trial preparation was carried out by another lawyer in Mr. Winnitoy’s office whose hourly rate is less than his. This resulted in some costs savings. Mr. Winnitoy’s partial recovery rate is $337.50. His full recovery rate is $450. These rates are appropriate for counsel with 28 years of experience.

Expert Witness Fees

[9] Dr. Bastedo called one expert, Mr. Jeffrey, an actuary, who was required to provide opinion evidence regarding the value of Ms. Bastedo’s pension and her net worth. His opinion was accepted by the court. Dr. Bastedo paid $847.50 to Mr. Jeffrey for his report on Ms. Bastedo’s pension, as well as $2,114.50 for his attendance at trial. Both of these amounts are reasonable.

Ms. Bastedo’s Position

[10] Ms. Bastedo submits that she was at a disadvantage during the trial. She states that the “continuing record” was unavailable. I presume that this relates to the difficulty in locating the record which resulted in the 1996 order. Wood J. ordered the file from storage. Ms. Bastedo states that copies of documents from this file were not available until May 3, 2019. She notes that the Motion to Change was a new file. She states that these “aberations” have compromised her.

[11] Ms. Bastedo also submits that she received the Motion to Change unexpectedly. Dr. Bastedo had already made plans. She states that she had difficulty finding suitable counsel to represent her because of “conflict of interest, distance, complexities, schedules, staff, etc.”.

[12] Ms. Bastedo submits that her claims were logical, reasonable and fair based on her realization of the relevant Spousal Support Advisory Guidelines range and the fact that there is a 2018 order requiring Dr. Bastedo to pay his wife spousal support in an amount that greatly exceeds the order in this matter. She also states that she was “substantially denied the opportunity to address relevant topics (e.g. disclosure, bring my expert witnesses, SSAG’s quantum ranges)”.

[13] There is no evidence as to the relevance of the 1994 file except for the order, which was produced. No doubt Ms. Bastedo was surprised when she was served with the Motion to Change and learned that Dr. Bastedo wish to terminate spousal support because he was retiring; however, there was no evidence that Dr. Bastedo failed to comply with the timelines as stipulated in the Family Court Rules.

[14] I presume that Ms. Bastedo’s submission that she was “substantially denied the opportunity to address relevant topics” refers to the trial scheduling order made by Wood J. and the fact that this court would not grant her a further adjournment.

Other Relevant Matters

[15] Dr. Bastedo points out that that in Serra v. Serra, 2009 ONCA 395, at para 8, the court stated that family cost rules are designed to foster three fundamental purposes:

(a) to partially indemnify successful litigants;

(b) to encourage settlement, and;

(c) to discourage and sanction inappropriate behaviour by litigants.

[16] In MacLeod v. MacLeod, 2019 ONSC 3299, at para 7, the court commented that costs orders are used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. Courts make costs orders to further the efficient and orderly administration of justice. In Alvarex v. Novo, 2019 ONSC 3272, on a motion, the applicant sought six heads of relief. Three were abandoned at the commencement of the motion. In the end, applicant was unsuccessful on the first issue and had divided success on the second issue. The third issue was essentially unopposed. In awarding costs to the respondent equal to 70% of the total cost incurred, which was in the higher range of a partial recovery award, in para 10, the court stated,

In terms of the amount of costs, I have taken into account that the Applicant only withdrew his claim for important temporary relief at the hearing. The Respondent had already incurred costs to respond to those issues. The lack of notice of withdrawal put the Respondent to the added expense of preparing to argue those issues. Failing to give timely notice of withdrawal was unreasonable litigation conduct on the Applicant’s part.

[17] Here, Ms. Bastedo withdrew her claims just prior to making her own submissions. Not only did Dr. Bastedo have to incur the added expense of preparing to argue those issues, he had to call evidence and make submissions on them.

[18] Dr. Bastedo points out that in Steele v. Big Canoe, 2019 ONSC 1778, para 27, the court stated that costs orders encourage a change in attitude from a “litigate with impunity” mindset. Evidence that a party engaged in litigation conduct that unduly complicated the proceedings which needlessly increased the cost of the litigation or which was otherwise unreasonable provides a basis for increased costs consequences.

[19] Here, Ms. Bastedo advanced unsupportable claims such as retroactive support of $150,000 and increased support payable indefinitely. She did not offer any useful evidence as to why the spousal support should be continued. In fact, the evidence showed otherwise. To her credit, Ms. Bastedo has done well for herself post-separation. She returned to teaching, has a good pension, and has accumulated significant assets.

[20] According to Farjad-Tehrani v. Karimpour, 2009 CarswellOnt 2186, para 32, which was affirmed by the Ontario Court of Appeal in 2010, one of the considerations in an assessment of costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding. According to Hackett v. Leung, 2005 42254 (ON SC), [2005] O.J. No. 4888, costs ought to be proportional to the issues and amounts in question and the outcome of the case. Amounts actually incurred by the successful litigant may not be determinative. According to Beaver v. Hill, [2018] ONCA 840, referred to in Alverez, para 15, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

Costs Claimed by the Parties

[21] According to his Bill of Costs, Dr. Bastedo’s fees, excluding disbursements and tax, on a full recovery basis are $33,685.00. On a partial recovery basis, they are shown to be $25,263.75, which is 75 percent of the full recovery costs. According to Mattina v. Mattina 2018 ONCA 867, [2018], O.J. No. 5625, a successful party was entitled to partial indemnity costs between 60 and 70 percent of her costs of an appeal. The total amount requested by Dr. Bastedo, including tax and disbursements is $34,160.60 which is also shown on the Bill of Costs as the partial recovery amount. If Dr. Bastedo’s costs were calculated based on 70 percent of full recovery, the fees would be $23,579.50, plus disbursements and tax totalling $32,257.40.

[22] Ms. Bastedo prepared a Bill of Costs. It shows that she paid a total of $17,448.92 to 10 different lawyers (including an articling student), $5,018 of which appears to be for consultations and $12,430 of which appears to be for unbundled services with a limited scope retainer, described as “settlement conference/trial scheduling conference”.[^1] Ms. Bastedo claims $11,500 for her “estimated fees at occasional teachers’ rate including travel”, even though she is retired. She also claims $1,010, which includes Ms. Beacom’s attendance and travel costs for family members, even though they did not testify. She further claims $3,000 which is described as “costs ordered and paid to Mr. Winnitoy”. From this I presume that Ms. Bastedo was ordered to pay costs to Dr. Bastedo at some point earlier in the proceedings.

[23] While the costs of the unsuccessful party can sometimes provide a basis for assessing the costs of the successful party, that is not the case here. Ms. Bastedo was unrepresented at trial. There is no basis for her to claim $11,500 for personal fees because she is retired. Fees can be awarded to a self-represented litigant but only if that litigant can show that he or she suffered a loss of income as a result of attending pretrial and trial proceedings.

Conclusion

[24] In my view, Dr. Bastedo’s costs should be in the upper end of the range as set out by the Court of Appeal in Mattina. Dr. Bastedo with the overall successful party. Ms. Bastedo’s withdrawal of significant substantive issues during her closing submissions and the additional costs incurred by Dr. Bastedo in relation to those issues are important factors.

[25] I find that a fair, reasonable and proportionate costs award to Dr. Bastedo is $32,257.39 which shall be paid by Ms. Bastedo within 45 days.

Vallee J.

Released: August 1, 2019

[^1]: The Bill of Costs also shows disbursements of $2,465.68, including supplies of $494.68. This amount includes $14.68 for pens and $250 for printer and ink.