Court File and Parties

COURT FILE NO.: FC717/19 DATE: April 20, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Rheannon Lee Reis, applicant AND: James Leonard Lovell, respondent

BEFORE: MITROW J.

COUNSEL: W. Scott Gallagher for the applicant Kenneth B. Fraser for the respondent

HEARD: written submissions filed

Endorsement on Costs

[1] I have considered the parties’ written costs submissions that were provided pursuant to my order dated February 24, 2022.

[2] The applicant was successful in her motion for an interim restraining order. [1] The applicant’s motion was prompted by a letter from the respondent’s counsel advising that the respondent was intending to enter on the property, registered in the names of both parties, for the purpose of bow hunting. The subject property consisted of approximately 100 acres, in a rural setting, which contained a residence. The applicant had been residing in that residence since separation.

[3] The applicant seeks full recovery costs of $8,141.35 or, alternatively, costs approaching full recovery in the amount of $7,000 all inclusive. The applicant’s counsel spent 19.70 hours at $350 per hour. The fees and HST total $7,791.35. There is one additional hour added and described as “estimated counsel fee for appearance (1 hour).” The bill of costs already includes time for appearing on the motion; it is not clear what this “estimated counsel fee” is for.

[4] The respondent concedes that the applicant was successful and is entitled to costs. He submits that $1,500 inclusive of HST and disbursements is appropriate.

[5] The applicant submits that the respondent’s conduct “lapsed into bad faith or very unreasonable behaviour.” The respondent takes significant issue with the characterization of his behaviour as “bad faith.”

[6] I agree with the respondent that his behaviour does not amount to bad faith, for the reasons set out in Ayala v. Giron, 2011 ONSC 4658 [2], relied on by the respondent.

[7] The applicant relies on Berta v. Berta, 2015 ONCA 918 (Ont. C.A.), at paras. 92 and 93, for the proposition that, in family law matters, the preferable approach is to have costs recovery generally approach full recovery.

[8] However, that interpretation of Berta was rejected in Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at paras. 10-13:

10 Second, the respondent's assertion that this court's decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 (Ont. C.A.) supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24 of the Family Law Rules. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11).

11 There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads: (12) In setting the amount of costs, the court shall consider, (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party's behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter

12 As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

13 Further, a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14). ...

[9] Accordingly, I apply the factors in r. 24(12).

[10] In relation to behaviour, while the respondent’s behaviour does not rise to bad faith as discussed earlier, his behaviour was described as “bad judgment” (reasons, at para. 65) and “intentional and provocative” (reasons, at para. 63). These aspects of the respondent’s behaviour I would characterize as unreasonable.

[11] I find the time spent by the applicant’s counsel to be within the range of what is reasonable and, further, the hourly rate of $350, I find, is very reasonable considering counsel’s experience level of 34 years.

[12] The applicant made no offer. However, the respondent made an informal proposal, later contained in a formal r. 18 offer. The respondent offered to provide notice, not bring his hunting bow or any other weapon, and not to enter a certain area of the property.

[13] While the respondent appears to be of the view that $1,500 all inclusive is reasonable, I attribute little weight to this submission as the respondent has failed to provide documentation showing his own fees and expenses. Rule 24(12.2) states:

Same, opposing party 24(12.2) A party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party’s own fees and expenses to the court and to the other party.

[14] This motion was important to the applicant. Although the motion was not complex, it was necessary for the applicant to obtain some corroborating affidavits and make submissions as to the law regarding restraining orders. Both counsel assisted the court in providing relevant authorities.

[15] I find that the time spent, and fees, of the applicant are proportional to the issue. A finding was made that the applicant’s fears for her safety were reasonable and legitimate (reasons, at para. 69).

[16] It should be noted that the order provided that it was without prejudice to the respondent’s right to bring a motion for the termination of the interim restraining order if this proceeding is not finalized by June 30, 2023.

[17] Considering all the factors, I find that $6,500 all inclusive is reasonable and proportional.

Order

[18] The respondent shall pay to the applicant her costs of the motion fixed in the amount of $6,500 inclusive of HST and disbursements within 30 days.

“Justice Victor Mitrow” Justice Victor Mitrow

Date: April 20, 2022

Footnotes:

[1] See reasons at Reis v. Lovell, 2022 ONSC 1201 (Ont. S.C.J.). [2] Ayala v. Giron, 2011 ONSC 4658 (Ont. S.C.J.), London court file F1455/08.