Court File and Parties

COURT FILE NO.: FS-16-20879-00 DATE: 2019-11-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mendo Davidson, Applicant AND: Christine Mae Davidson, Respondent

BEFORE: Sanfilippo J.

COUNSEL: Sarah Boulby and Kenneth Fishman, for the Respondent

IN WRITING: November 25, 2019

ENDORSEMENT ON COSTS

Overview

[1] By Endorsement issued February 28, 2019, I refused to confirm the Provisional Variation Order made by the Honourable Justice Douglas Campbell of the Supreme Court of Nova Scotia (Family Division), pursuant to section 19(7)(c) of the Divorce Act, R.S.C. 1985, c. 3: Davidson v. Davidson, 2019 ONSC 6727.

[2] The Respondent, Christine Mae Davidson, brought a motion in writing under Family Law Rule 14(b) for an Order permitting her to make cost submissions in relation to the costs that she sustained in responding to this Variation Application. On June 26, 2019, I granted this Order, and the Respondent then submitted her cost submissions in writing. The Respondent seeks costs payable by the Applicant, quantified in the amount of $22,138.48 on a full indemnity basis and in the amount of $16,964.21 on a partial indemnity basis.

[3] I have analysed the Respondent’s submission on costs and will explain the Respondent’s position and the principles applicable to my determination of the issue of costs. I will then implement a process for the out-of-province Applicant, Mendo Davidson, to deliver written submissions on the issue of costs.

A. The Respondent’s Cost Submission and Applicable Principles

[4] The Respondent is presumptively entitled to an award of costs because she was successful in her responding position that the Provisional Order not be confirmed. Rule 24(1) of the Family Law Rules, O. Reg. 439/07, provides as follows: “There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal”. In Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94, the Ontario Court of Appeal stated that “a successful party in a family law case is presumptively entitled to costs”.

[5] The conduct of the Applicant also supports a determination that the Respondent is entitled to an award of costs. The Applicant did not serve the Respondent with his Variation Application in the Nova Scotia Court, denying the Respondent the opportunity to join in this dispute by direct appearance in the Nova Scotia proceeding. The failure to provide the Respondent with the election of appearing in Nova Scotia set in motion this lengthier proceeding under section 18(2) of the Divorce Act, causing the Respondent greater expense. Further, the Respondent delivered an offer to settle this proceeding, at a value that was more beneficial to the Applicant than the result achieved. Had the Applicant accepted, the Respondent would not have incurred the expense of a response. Last, the Respondent provided the Applicant with evidence of her income from 2012 to 2015 that dispelled the factual foundation for the relief sought by the Applicant against the Respondent and ought reasonably to have resulted in an abandonment of this matter.

[6] An award of costs is discretionary: Courts of Justice Act, R.S.O. 1990, c. C.43, section 131: “Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.

[7] In terms of the amount of costs, the Respondent filed a Bill of Costs that contained the following evidence:

(a) The Respondent incurred 72.9 hours of lawyers’ time in responding to this Application, at hourly rates, on a full indemnity basis, of $395.00 to $595.00 per hour for senior counsel (2009, 1993 years of Call, respectively), and $300.00 per hour for junior counsel (2014 year of Call). The Respondent thereby claimed to have incurred $18,436.50 in legal fees on a full indemnity basis, plus Harmonized Sales Tax of $2,396.75, for a total of $20,833.25;

(b) On a partial indemnity basis, the 72.9 hours of lawyers’ time incurred by the Respondent would be quantified at hourly rates of $300.00 to $350.00 per hour for senior counsel (2009, 1993 years of Call, respectively), and $225.00 per hour for junior counsel (2014 year of Call). This produced a quantification of legal fees on a partial indemnity basis of $13,587.50 plus HST of $1,801.48 for a total of $15,658.98;

(c) The Respondent claimed to have incurred disbursements of $1,155.07 for process server fee, courier fees, registered mail fees and copying fees. The HST on this amount is $150.16 for a total expense for disbursements and applicable taxes of $1,305.23.

[8] The lawyers’ time detailed in the Bill of Costs is supported by a time and activities ledger that itemized the nature of each service provided. I am satisfied, from my analysis of this ledger, that the legal services incurred by the Respondent were directed entirely to her response to this Application.

[9] Similarly, the disbursements claimed are detailed in a ledger that itemizes each such charge. The Respondent also filed copies of the individual invoices for each expense entry. I am satisfied, from my analysis of these materials, that these disbursement expenses were incurred by the Respondent in furtherance of her response to this Application.

[10] Family Law Rule 24(12) sets out the factors that a Court shall consider in determining an appropriate amount of costs. These factors were considered by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, at paras. 9-15, and in Beaver v. Hill, 2018 ONCA 840 at paras. 8-13. In Beaver, at para. 12, Nordheimer J.A. stated: “As the wording of the rule [Family Law Rule 24.12] makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”. This principle was emphasized by the Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56 (C.A.), at para. 26, which while stated in the civil litigation context has direct application to assessment of costs in family law matters: “…the fixing of costs is not simply a mathematical exercise. … The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

B. Process for Written Submissions by the Applicant on the Issue of Costs

[11] To provide the Nova Scotia Applicant with an opportunity to make written submissions on the issue of costs, I implement the following process:

(a) I remit this matter back to the Nova Scotia Supreme Court, in accordance with section 19(6) of the Divorce Act: “Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking evidence or for any other purpose it is necessary to remit the matter back to the court that made the provision order, the court may so remit the matter and adjourn the proceeding for that purpose [emphasis added]. The purpose for remitting this matter back to the Nova Scotia Supreme Court is to grant the Applicant an opportunity to make written submissions to the Ontario Superior Court of Justice on the Respondent’s claim for costs resulting from her successful response to this Application, as explained in this endorsement;

(b) I grant the Applicant ninety (90) days from the date of this endorsement to file with the Ontario Superior Court of Justice his written submissions on costs, which shall be no more than four (4) pages in length, plus any supporting materials, in accordance with Family Law Rule 24, and legal authorities relied upon;

(c) I adjourn this matter for a period of ninety (90) days from the date of this endorsement.

[12] In the event that the Applicant does not file with the Ontario Superior Court of Justice any written submission on the issue of costs within ninety (90) days from the date of this endorsement, I will then determine the Respondent’s claim for costs of this Application on the Respondent’s written submissions: Spring v. Spring, 2019 ONSC 367.

Sanfilippo J.

Date: November 25, 2019