COURT FILE NO.: FS-21-00100918-0000
DATE: 2021 11 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.P.
Joshua J. Gleiberman, for the Applicant
Applicant
- and -
P.P.
Linda Starova, for the Respondent
Respondent
Price J.
Costs Endorsement
NATURE OF MOTION
[1] The parties have been unable to resolve the issue of what amount A.P. should pay to P.P. for the costs he incurred in the parties’ motions to determine a parenting schedule for their eight year old daughter M.P. and to determine what school she should attend. These reasons address the costs of those motions.
BACKGROUND FACTS
[2] The facts giving rise to the motions are set out in the Court’s reasons dated October 1, 2021. I adopt those factual findings for the purpose of this endorsement. The remainder of the facts pertinent to costs concern the steps the parties took to resolve the issues following their separation.
[3] The parties sold their matrimonial home on July 2, 2021, and moved into separate residences. In May 2021, A.P. signed a lease for accommodation in Ajax, Ontario, an hour east of Mississauga, where the parties had previously lived and where M.P. had attended school. She did not consult P.P. in advance, nor propose a parenting plan before doing so, although both parties were then represented by lawyers.
[4] Faced with P.P.’s objection to her moving M.P. to Ajax, A.P. extricated herself from her lease there and moved to her current home in Toronto. In June 2021, she retained a new lawyer, and then renewed her effort to relocate with M.P. to Ajax. She proposed mediators "to seek a parenting plan in which she could move to Durham Region." She was apparently unwilling to consider a parenting plan that would entail M.P. remaining within the catchment area of her school in Mississauga, where M.P. had grown up since 2015, where she had always attended school, and where P.P. was seeking accommodation for himself and for her.
[5] A.P. unilaterally kept M.P. with her at her Toronto home without a court order or agreement of the parties. She unilaterally imposed a parenting schedule during the summer of 2021, based on her work schedule and preferences, until the motions were heard on September 29, 2021, in spite of P.P.’s efforts, through counsel, to obtain more parenting time with M.P.
[6] From July 12 to August 26, 2021, in a series of e-mails to A.P.’s lawyer, P.P. sought to address the issue of what school M.P. would attend that fall. He made it clear that he did not consent to her being enrolled in a school in Toronto. On September 8, 2021, A.P.’s lawyer notified his lawyer that A.P. had enrolled M.P. at a school in Toronto.
[7] After hearing the motions on September 29, 2021, the Court made an Order on October 1, 2021, for equal parenting and directing that the child be returned to her school in Mississauga.
PARTIES’ POSITIONS
[8] P.P. submits that he was successful in the motions and seeks an Order for his costs on a full recovery basis in the amount of $8,076.30 plus HST.
[9] A.P. submits that P.P.’s costs should be reduced from the range of $2,500.00 to $3,5000.00 to approximately $1,000.00, based on his unreasonable conduct in failing to submit the dispute to mediation or arbitration by a parenting co-ordinator. She argues that this amounted to bad faith and was in breach of the Divorce Act and Children's Law Reform Act.
ANALYSIS, EVIDENCE, AND LAW
a) General principles
[10] The Court of Appeal for Ontario, in Beaver v. Hill, 2018 ONCA 840, at paras. 9 to 14; and Mattina v. Mattina, 2018 ONCA 867, at paras. 9 to 18, set out the principles to be applied when determining costs in family law matters. They are as follows:
a. Cost awards are discretionary;
b. Judges in family law cases are not constrained by the scales of costs found in the Rules of Civil Procedure;
c. The Family Law Rules expressly provide that depending on the conduct of the parties and the presence or absence of offers to settle, a Judge may increase or decrease the costs that would otherwise be the appropriate;
d. There is no provision in the Family Law Rules for a general approach of “close to full recovery” costs;
e. Rule 24(12) sets out the appropriate considerations in fixing the quantum of the costs in a family law matter;
f. Proportionality and reasonableness are the touchtone considerations to be applied in fixing the amount of costs.
[11] Costs Orders are designed to achieve three principal goals, (a) to indemnify successful litigants; (b) to sanction unreasonable conduct of the litigation; and (c) to encourage settlement. See: Paranavitana v. Nanayakkara, 2010 ONSC 2257.
[12] The goal of indemnifying successful litigants is achieved through Rule 24(1) of the Family Law Rules O.Reg. 114/99. It provides:
24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[13] Accordingly, a successful litigant whose conduct in a proceeding was reasonable should not be required to bear the costs of having his rights tested. See: Serra v Serra, 2009 ONCA 395
[14] The goal of sanctioning unreasonable conduct of litigation is achieved through Rule 24(4) of the Family Law Rules. It provides:
24(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[15] The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. However, where the successful party has acted reasonably and the unsuccessful party has not, the Court may order the unsuccessful party, who would, in any event, be ordered to pay the successful party’s costs to indemnity that party, at least partially, to pay those costs on a higher than partial indemnity scale.
[16] Where a successful family law litigant has acted reasonably in the proceeding and the unsuccessful litigant has not, the preferable approach is to order that costs be paid on a full recovery basis, provided the costs claimed are proportional to the issues and outcome and were within the range that the opposing party should have expected if unsuccessful in the motion. See: Sims-Howarth v. Bilcliffe, 2000 ONSC 22584, para. 11; Biant v. Sagoo, 2001 ONSC 28137, para. 1.
[17] In Sims-Howarth v Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.), Aston J. held that the two traditional scales of costs are no longer an 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, without any assumptions about categories of costs. The Court of Appeal for Ontario approved this characterization of costs under the Family Law Rules in C.A.M. v D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.), at para. 42.
[18] In Berta v. Berta, 2015 ONCA 918, at paras. 92-93, the Court of Appeal stated:
[92] In Biant v. Sagoo (2001), 2001 28137 (ON SC), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
[93] This court has repeatedly endorsed the Biant Court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 23003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 40.
[19] As the Court of Appeal noted in Beaver v. Hill and Mattina v. Mattina, there is no provision in the Family Law Rules for a general approach of “close to full recovery” costs in all cases. There are, however, certain circumstances, deemed “special circumstances”, in which the unsuccessful party will be found to have acted unreasonably and will be ordered to pay the successful party’s costs on a substantial indemnity scale or on a full recovery basis. Examples of such circumstances are:
a. Where the unsuccessful party has failed to accept a reasonable Offer to Settle made by the successful party. In such circumstances, Rule 18(14) entitles the successful party to “full recovery of costs”.
b. Rule 24(8) also refers to “costs on a full recovery basis,” where a party has acted in bad faith.
c. The successful party in a motion made necessary by the responding party’s breach of a court order has historically been entitled to costs on at least a substantial indemnity scale. See: Cassidy v. Cassidy, 2011 ONSC 791, para. 14; Astley v. Verdun [2013] ONSC 6734 (SCJ), at paras 52 to 58. This was because a finding of contempt is a finding of unreasonable conduct. Substantial indemnity costs did not follow automatically or invariably from such a finding, but the finding gave rise to a rebuttable presumption that the successful party was entitled to costs on a substantial indemnity scale.
[20] In family law cases, the court need not find “special circumstances” before ordering costs on a full recovery basis. See: Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287. It has a range of costs awards open to it, from nominal to just short of full recovery. The reason why, even in the absence of “special circumstances,” it is generally appropriate to award the successful party full recovery costs is that in many family law cases, the applicable principles are well established and the rights of the successful party make the outcome of a motion self-evident. For example:
a. A parent with whom a child is principally resident and with whom the child spends more than 60% of her time, is generally entitled to child support from the other parent in the amount prescribed by the table in the Federal Child Support Guidelines. The outcome of an application or motion by such a parent is self-evident and should not require litigation to determine. In such a case, in the absence of extenuating circumstances, costs should be awarded to the successful litigant on a full recovery basis.
b. A parent who, without obtaining a court order or consent of the other parent, removes the parties’ child to a distant place in a manner that interferes with the other parent’s parenting time with the child will almost invariably be required to return the child. An application or motion should not be necessary. If one is brought, in the absence of extenuating circumstances, the outcome will be a foregone conclusion. In such a case, the parent who is put to the expense of an application or motion is entitled to her costs on a full recovery basis.
[21] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he/she may face if unsuccessful. In Perri v. Thind et al., 2009 34977 (ON SC), 98 O.R. (3d) 74 (S.C.), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct. See: Perri, at paras. 24-26, 32-33.
b) Applying the principles to the facts of the present case
Indemnifying the successful party
[22] It is not disputed that P.P. was successful in the outcome of the motions. He is therefore presumptively entitled to his costs pursuant to Rule 24(1) of the Family Law Rules.
Sanctioning unreasonable conduct
[23] A.P. submits that P.P.’s costs should be reduced by reason of his unreasonable conduct in refusing to submit the parties’ dispute to a less costly means of dispute resolution by a parenting co-ordinator.
[24] P.P. submits that A.P. should be ordered to pay his costs on a full recovery basis because she withheld parenting time from him and removed M.P. from the county where she and P.P. resided and where M.P. attended school, and the outcome of the motions was therefore a foregone conclusion.
a. P.P.’s refusal of mediation/arbitration by a parenting co-ordinator
[25] Failure to accept a reasonable Offer to Settle is unreasonable conduct of the kind that most often results in an award of costs on a higher than partial indemnity scale. In the present case, no Offers were exchanged by the parties.
[26] A.K. submits that, in accordance with sections 7.3 and 7.7(2) of the Divorce Act, and. 33.1 of the Children's Law Reform Act the Applicant offered, since June 9, 2021 to have the issues in dispute submitted to a Parenting Co-ordinator, Sue Cook, for mediation or arbitration. She submits that P.P. precipitated the motions by refusing to entertain such Alternate Dispute Resolution, unless her request to change M.P.’s residence to Durham Region was excluded from the issues to be addressed. She argues that Parliament and the Legislature have specifically provided for the Alternate Dispute Resolution of such issues and that P.P.’s conduct should be sanctioned by reducing the costs awarded to him.
[27] A.P. submits that it was unreasonable for P.P. to reject Alternate Dispute Resolution simply because he did not want to discuss an issue important to her. She argues that Including the mobility issue in the parenting coordination would not have meant that A.P. would be successful in moving to Durham, but simply meant that the parenting coordinator could have explored the issues fulsomely, and made a decision taking into all factors not available to the Court on an interim motion, such as obtaining the child's views and preferences and investigating the parties’ claims and their abilities to meet their child’s needs.
[28] P.P.’s refusal to submit to arbitration, especially when the Court later validated his position that it was in M.P’s best interests for the parties to have equal parenting time and for M.P. to continue attending school in Mississauga does not disentitle him to his costs. In Baldwin v. Daubney, (2006) 2006 33317 (ON SC), 21 B.L.R. (4th) 232 (Ont. S.C.J.), at para. 12, Spence J. declined to consider a refusal to mediate as a factor in the exercise of his costs discretion:
The plaintiffs say that the defendants refused the request of the plaintiffs to mediate and thereby caused the motion to proceed with its attendant costs, which a successful mediation would have avoided. The defendants say they considered they had a good defence and were not obliged to mediate. Mediation is most likely to be successful where each party considers it has something material to gain from a settlement and appreciates that to achieve a settlement it will need to accept a compromise of its position. Where one litigant is confident that its position will succeed in court, it has little reason to take part in a process that would yield it a lesser result and it is not bound to do so. Indeed, to take part in a mediation in such circumstances could simply prolong the process and add to the cost.
[Emphasis added]
[29] Where mediation has a reasonable prospect of success, and a refusal to participate reflects an arbitrary unwillingness to entertain a less expensive and speedier means of resolving the issues in a just manner, it can be regarded as unreasonable conduct and attract a costs sanction. Mediation often offers a less expensive means of resolving family law disputes than adjudication. See: Joanne Gross, An Introduction to Alternative Dispute Resolution, 1995 Docs 178, at page 9, in which the author cites research conducted in 1990 by J. Kelly, Past President of the Academy of Family Mediators, which showed that the mean cost of the adversarial process for both the husband and wife combined was 134 percent higher than the costs of comprehensive mediation.
[30] In their article, Resolving Family Law Disputes, Infographic, Canadian Forum on Civil Justice, 2018 Docs 11081, https://canlii.ca/t/t1n5:, the authors report that they asked 166 lawyers practicing family law in Alberta, British Columbia, Ontario and Nova Scotia questions about the benefits, limitations, cost, and suitability of Collaboration, Mediation, Arbitration and Litigation to resolve different types of family law problems. The authors state:
A majority of lawyers agreed that mediation, arbitration and collaboration are usually cost-effective. Typical low-conflict cases resolved through collaboration or mediation cost almost half that of low- conflict cases resolved through arbitration or litigation….
[31] Joanne J. Paetsch, Lorne D. Bertrand and John-Paul Boyd came to the same conclusion in An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods, Canadian Forum on Civil Justice (www.cfcj-fcjc.org) 2018 Docs 11070; as do Noel Semple and Nicholas Bala in an article, Reforming Ontario's Family Justice System: An Evidence-Based Approach, 2013 Docs 498, at pages 147-148.
[32] Where the Court rules make participation in mediation mandatory, a refusal to mediate amounts to a contempt of court and unreasonable conduct. That constitutes a special circumstance that will presumptively disentitle a successful party to her costs or may result in an order requiring an unsuccessful party to pay costs on a higher scale. This is because where mediation is mandated, it can be inferred that regulators have concluded that it offers a potentially successful, less expensive, and more timely method of resolving the dispute in a just manner and that the refusal to participate is therefore presumptively unreasonable.
[33] For example, section 258.6(2) of the Insurance Act, R.S.O. 1990, c.I.8, provides that a person’s failure to comply with the mediation requirements of the Act “shall be considered by the court in awarding costs”. In Williston v. Gabriele (2013), 2013 ONCA 296, 115 O.R. (3d) 144 (C.A.), at para. 25, it was held that where a party repeatedly requested mediation and the insurer never agreed to participate, despite its statutory obligation to do so, “an augmented costs award was warranted”.
[34] In the civil case of David v. Transamerica Life Canada, (2016) 2016 ONSC 1777, 131 O.R. (3d) 314, at para. 97, this Court ordered an insurer to pay the respondent’s costs because it had refused to participate in a mediation over disputed insurance proceeds:
In cases where each of the parties has an arguable case, and each faces a risk of loss in the proceeding, mediation can offer a reasonable prospect of settlement. In such cases, a refusal to participate in mediation is a factor that the court can properly consider in determining whether the party has engaged in unreasonable conduct that has caused unnecessary costs to be incurred and that warrants rebuke by means of a costs sanction. This determination requires a case-by-case analysis.
[35] Justice Mew agreed with this approach in Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, at para. 47. At para. 49 and following, he cited the position in England and Wales, as summarised by Professor Adrian Zuckerman in Zuckerman on Civil Procedure, 3ed (London): Sweet & Maxwell, 2013 at p.1335) as follows:
[49] …The court may take the view that had the parties engaged in ADR, the dispute would have settled without proceedings and therefore disallow all or some of the costs of the party who declined ADR even if that party was successful. Experience shows, as Brooke L.J. explained in Dunnett v Railtrack Plc [2002 EWCA Civ 303, [2002] 2 All E.R. 850 at para. 14], that:
When the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live.
[50] Professor Zuckerman does, however, go on to note, again, consistent with the sentiments expressed by Price J. in David v. Transamerica:
The Court of Appeal has accepted, however, that not all disputes are suitable for mediation and that a refusal of mediation may well be justified. It was held [in] Halsey v Milton Keynes General NHS Capital Trust; Steel v Joy, [2004 EWCA Civ. 576, [2004], 1 W.L.R. 3002] that before making an adverse costs award for a refusal to participate in mediation the court must consider whether the refusal was justified. Depriving a successful party of his costs is justified only if the unsuccessful party shows that the successful party acted unreasonably in refusing to agree to ADR. The reasonableness of ADR refusal, Dyson L.J. explained, must be judged by reference to all of the circumstance [sic.], including the following: (i) the nature of the dispute; (ii) the merits of the case (the factor that a party reasonably believes that he has a strong case is relevant to the question of whether he has acted reasonably in refusing ADR); (iii) whether other methods of settlement have been attempted; (iv) whether the costs of the ADR would be disproportionately high; (v) delay in suggesting mediation which may have the effect of delaying the trial of the action; and (vi) whether the mediation had a reasonable prospect of success.
[Emphasis added]
[36] Neither the Family Law Act nor the Family Law Rules requires parties to participate in a mediation before making an application or motion to have a dispute regarding decision-making or parenting adjudicated.
[37] In Sang v. Suteu, 2016 ONCJ 160, in which the issue was what parenting arrangements were in the child’s best interests, Justice Zisman held, at para. 29, that he did not have evidence as to the details of the parties’ settlement positions before trial and was therefore unable to determine which party was being unreasonable when the mother made repeated attempts to resolve the dispute by agreeing to mediation and the father refused.
[38] In the present case, A.P. was insisting that P.P. submit not only to the parenting plan and choice of school, but her proposed move with M.P. to Durham Region to mediation or arbitration by a parenting co-ordinator. P.P.’s refusal to submit to the issues of a parenting co-ordinator on A.P.’s terms was not unreasonable conduct that should be sanctioned by reducing the costs to which he would otherwise be entitled.
b. A.P.’s enrollment of the child in a school in Toronto
[39] P.P. submits that A.P.’s unreasonable conduct in enrolling M.P. in a school in Toronto, absent a court order or agreement of the parties, should entitle him to recover his costs on a substantial indemnity scale or full recovery basis. He argues that A.P.’s unilateral self-help measures through the summer and early fall of 2021 precipitated the motions and that had she not employed such measures, the parties could have turned their attention to a s. 30 assessment without delay.
[40] I find that A.P.’s enrollment of the child in a school in Toronto was calculated to give her a strategic advantage in relation to the choice of school and perhaps in relation also to the child’s residence. She acted unreasonably by refusing to entertain any of P.P.’s proposals for equal parenting time. P.P. offered in writing, through counsel, a week-about, and a 4-3/3-4 parenting schedule, which he said would work best with his work schedule and would allow him to spend quality time with M.P. Ultimately, the Court applied a 4-3/3-4 schedule in its Order dated October 1, 2021.
[41] On October 6, 2021, P.P.'s counsel offered that A.P. pay P.P. only $5,500.00 towards his costs (excluding disbursements and HST) by November 1, 2021, which would have obviated the need for written cost submissions. A.P.’s lawyer was granted until noon on October 12, 2021, to respond. A.B.’s lawyer did not respond, thereby requiring P.P.’s lawyer to spend additional time drafting costs submissions.
[42] The outcome of these motions could have been predicted by applying well-established principles. The outcome was self-evident, and the goal of sanctioning unreasonable conduct will best be achieved by ordering costs to be paid on a higher than partial indemnity scale.
Encouraging settlement
[43] The third main goal of a costs order is to encourage settlement. The parties’ property and support issues have yet to be determined. An order limiting P.P. to his costs on a partial indemnity scale will send the wrong message to A.P. in approaching the remaining issues.
[44] A.P.’s language in her costs submissions reflects a tendency to denigrate P.P.’s motives and polarize the parties in a manner that is not conducive to settlement. She states at paragraph 3 of her costs submissions, “In essence, the Respondent wanted to play chicken and force this case to litigation.”
[45] It will encourage settlement for the Court to order costs on a higher scale to sanction A.P. for moving M.P. outside her school’s catchment area in a way that increased P.P.’s travel time and for withholding parenting time from P.P., and unilaterally enrolling M.P. in a school in Toronto.
Amount of costs
a. Importance
[46] It is not disputed that the parenting schedule and choice of school were important to both parties. The issues were not complex, but had an impact on the parties’ relationships with M.P. which is not quantifiable in financial terms.
b. Lawyer’s hourly rates
[47] The Family Law Rules do not prescribe a means of determining a lawyer’s hourly rate for purposes of costs. Therefore, in determining the appropriate hourly rate to be assigned to P.P.’s lawyer, Linda Starova, and to avoid doing so arbitrarily, the Court follows the approach taken by Aitkin J. in the civil action of Geographic Resources Integrated Data Solutions Ltd. v. Peterson , 2013 ONSC 1041, at paras. 7, and 11-16. That is, the starting point is the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (the “Costs Bulletin”), which the Sub-Committee issued in 2005 to replace the Costs Grid, which it repealed that year.
[48] The Costs Bulletin, which can be found immediately before Rule 57 in the Carthy or Watson & McGowan edition of the Rules of Civil Procedure, sets out maximum partial indemnity hourly rates for counsel of various levels of experience. It has advisory status and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid. The upper limits in the Costs Bulletin are generally intended for the most complex and important of cases.
[49] The Costs Bulletin suggests a maximum hourly rate (on a partial indemnity scale) of $225 for lawyers with less than 10 years' experience. The Costs Bulletin, published in 2005, is now dated. It is therefore appropriate, normally, to adjust the hourly rates in the Costs Bulletin to account for inflation since 2005. Aitkin J. considered doing this in the Geographic Resources case, as Smith J. did in First Capital (Canholdings) Corp. v. North American Property Group, 2012 ONSC 1359, but the unadjusted rates of the lawyers in her case were only slightly less than the actual fees they charged, so she elected to use their unadjusted rates.
[50] Based on the Bank of Canada Inflation Calculator, Available online at http://www.bankofcanada.ca/rates/related/inflation-calculator/, the 2021 equivalent of the maximum partial indemnity hourly rate in the Costs Bulletin for lawyers having less than 10 years’ experience is $296.61.
[51] The Court adjusts the hourly rate, or the resulting fees, to reflect unique features of the case, including the complexity of the proceeding, the importance of the issues, and the other factors set out in Rule 57.01(1) of the Rules of Civil Procedure, or in Rule 24 of the Family Law Rules. If an excessive amount of time was spent, or too many lawyers worked on the file, the Court reduces the resulting amount of fees accordingly.
[52] P.P.’s lawyer, Linda Starova, was called to the Ontario Bar in 2014 and charges an actual hourly rate of $275.00. In P.P.’s Bill of Costs, she claims an hourly rate of $261.00, based on her maximum partial indemnity hourly rate of $225.00, as recommended in the 2005 Costs Bulletin for lawyers with less than 10 years in practice, adjusted for inflation to $296.61, and reduced to $261.00 to reflect the fact that Ms. Starova has practiced for 7 years, (3 years less than the maximum 10 years that defines the category in the Costs Bulletin), and the fact that these motions were not of maximum complexity. I find this hourly rate and the way it was calculated to be reasonable.
[53] The Court is guided by the rates in the Costs Bulletin, not the actual hourly rates charged. The actual rates charged are relevant only as a limiting factor in preventing the costs awarded from exceeding the actual fees charged. The Costs Subcommittee’s rates apply to all lawyers and all cases, so everyone of the same level of experience starts at the same rate. As long as the resulting amount does not exceed the amount actually charged to the client, the actual fee that the client agreed to pay is irrelevant.
[54] A.P. acted unreasonably in removing M.P. from Peel Region to Toronto and in withholding parenting time from P.P. M.P. resided in Mississauga from 2015 until the matrimonial home was sold in July 2021. She grew up and resided in Mississauga and attended school in that City. A.P. interfered with P.P.’s parenting time by creating greater distance for him to travel when parenting, by withholding parenting time from him, and by resisting a parenting plan that would provide equal parenting time to him. It is appropriate to sanction A.P.’s conduct by requiring her to pay P.P.’s costs on a greater than partial indemnity scale; that is, by costs on a substantial indemnity scale or a full recovery basis.
[55] Rule 1 of the Rules of Civil Procedure defines substantial indemnity costs as meaning "costs awarded in an amount that is 1.5 times what would otherwise be allowable in accordance with Part I of Tariff A" - i.e. 1.5 times the partial indemnity rate. Costs calculated on a substantial indemnity scale represent something less than full indemnity. Justice Power, in Hanis v. University of Western Ontario, 2006 ONSC 23155, at para. 46, stated that in that case, they represent approximately 90% of the fees actually charged.
[56] Awarding P.P. his costs at 1.5 times Ms. Starova’s partial indemnity hourly rate of $261.00 would result in an hourly rate of $291.50. This would be higher than the $275.00 per hour that Ms. Starova actually charges her client. The principle of indemnification requires that costs awarded not exceed the amount actually charged. I therefore conclude that the appropriate hourly rate is $275.00.
c. Time reasonably spent
[57] P.P.’s lawyer spent 30.8 hours on the motions, consisting of 15.5 hours in correspondence, 11.3 hours preparing P.P.’s motion material, 2 hours attending at the hearing of the motion, and 2 hours preparing costs submissions. $37.50 was spent for disbursements, consisting of photocopies at .25 per page.
[58] A.P.’s lawyer, Joshua Gleiberman, who was called to the Bar in 1998 and charges $350.00 per hour, says that he spent 8 hours on the motion and 23.7 hours “from the beginning of the matter to the motion.” He was assisted by a law clerk, who spent an additional 1.2 hours.
[59] P.P.’s lawyer spent more time in correspondence than Mr. Gleiberman in an effort to negotiate parenting time for her client and avoid the need for the motion. Additionally, she spent more time on her motion material, as her reply affidavit was 5 pages, in addition to his initial 11-page affidavit, as compared to A.P.’s 3-page reply affidavit. Neither party prepared a factum.
[60] The way in which Mr. Gleiberman has presented his time, in two separate Bills of Costs and one undifferentiated print-out of docketed time, does not allow ready comparison of the time each party’s lawyer spent related to the motions. The only specific issue that Mr. Gleiberman takes with the time Ms. Starova claims is in relation to attendance at a Case Conference, for which Ms. Starova does not appear to have claimed.
[61] For these reasons, I find the time Ms. Starova claims was reasonable. By applying her actual hourly rate of $275.00 to the 30.8 hours she spent, I arrive at an amount of $8,470.00, to which I add $37.50 for disbursements and 13% HST, for a total of $9,613.48.
d. Proportionality and the reasonable expectation of the unsuccessful party
[62] I find that the above amount is proportional to the importance of the motions and the interests at stake. As noted above, there is insufficient evidence to determine whether the amount P.P. claims is proportional to the amount A.P.’s lawyer charged his client.
CONCLUSION AND ORDER
[63] For the foregoing reasons, it is ordered that:
A.P. shall pay P.P. his costs in the amount of $9,613.48, inclusive of HST and disbursements.
The costs shall be paid from A.P.’s share of the net proceeds of the sale of the matrimonial home or, if these have been distributed, forthwith.
A.P. shall pay post-judgment interest on the above costs at the rate prescribed by the Courts of Justice Act from the present dated to the date of payment.
(Signature of Judge)
Price J.
Released: November 9, 2021
COURT FILE NO.: FS-21-00100918-0000
DATE: 2021 11 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.P.
Applicant
- and -
P.P.
Respondent
COSTS ENDORSEMENT
Price J.
Released: November 9, 2021