COURT FILE NO.: FS-19-09107
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.M.
Applicant
– and –
C.B.
Respondent
Valois Ambrosino for the Applicant
Robert M. Halpern, Erin Caplan and Alexander Sennecke, for the Respondent
HEARD: In Writing
PINTO J.
costs endorsement
[1] On August 11, 2022 I heard the applicant wife’s motion for interim disbursements. I dismissed the motion for oral reasons given and reserved on the issue of costs. The parties were unable to reach an agreement on costs and made written submissions which I considered in arriving at this decision.
[2] On the motion, I found that the applicant had failed to demonstrate that she was incapable of funding the requested amount of disbursements given her ability to sell the cottage property, or in the alternative, raise funds through selling or encumbering other properties.
[3] The respondent is seeking $41,598.46 (all-inclusive) based on a substantial indemnity rate of 80% of the full-indemnity costs of $51,998.08 in the respondent’s Bill of Costs.
[4] The respondent submits that he was entirely successful on the motion and that the applicant failed to act reasonably by bringing a motion seeking interim disbursements in the amount of $775,000. He submits that the result of the motion exceeded his Offer to Settle and the appropriate consequences set out in the Family Law Rules should follow.
[5] The applicant disagrees with the respondent’s costs request and describes it as excessive for a “simple, short motion.” She proposes that costs be awarded in the amount of $7,199 (all-inclusive), payable in the cause, or alternatively, payable at the time one of her properties is sold.
[6] The applicant submits that it is uncontested that the respondent’s resources vastly outstrip her own. Further, she submits that the respondent has taken contradictory positions in various motions brought before the court. While criticizing her for not selling the jointly owned cottage or her other sole-owned properties to finance the litigation, the respondent is also asserting 100% ownership of those properties.
[7] The applicant characterizes the respondent’s costs as “shockingly high” given that the respondent claims that a total of 86.7 hours were spent by three different lawyers. The applicant submits that:
(a) It was not reasonable for the respondent to charge for Mr. Sennecke’s time as he is not a family law lawyer. It is unclear why Mr. Sennecke had to spend 17.4 hours preparing for or attending the motion.
(b) The respondent’s fees of $14,912 (almost $15,000) for drafting a single 13-page affidavit are excessive. The fees include a senior family law associate spending 24 hours billing at $450 an hour.
(c) The respondent’s fees totaling $10,808.50 for the drafting and preparation of a factum are also excessive given that much of the content was a duplicate of the factum the respondent filed in November 2021. The costs associated with the November 2021 motion were already dealt with in my costs ruling of March 1, 2022.
(d) Respondent fees totaling $9,318 were for meetings/communications that were unnecessarily attended by more than one lawyer.
[8] Finally, the applicant submits that the respondent’s Offer to Settle was only issued one day before the interim disbursements motion was argued. It was not an Offer to Settle that should trigger the application of Rule 18 of the Family Law Rules.
Discussion
[9] Costs are in my discretion. The touchstones are proportionality and reasonableness. A successful party in a family law case is presumptively entitled to costs. An award of costs is subject to the factors listed in Rule 24(12) of the Family Law Rules, the directions set out under Rule 24(4) (Unreasonable Conduct), and Rule 24(8) (Bad Faith).
[10] I note that in my March 1, 2022 ruling on the applicant’s motion, S.M. v. C.B., 2022 ONSC 340 at para. 51, and in the costs ruling associated with it, S.M. v. C.B., 2022 ONSC 3516 at para. 19, I expressed a concern about the applicant's refusal to consider sale of the jointly owned $5.0 million cottage. I was surprised that, notwithstanding these comments, the applicant proceeded to bring her motion for interim disbursements without selling the cottage or seeking financing on the other properties. I find that the applicant’s costs submissions avoid tackling this issue and instead reiterate previous submissions about the parties’ asymmetrical resources.
[11] I also find that the stakes for the respondent were significant. The applicant’s motion was for $775,000 in interim disbursements. It was reasonable for the respondent to put in a full-throated response to the motion.
[12] Nevertheless, I agree with the applicant that the respondent’s costs request is excessive.
[13] Upon review of the respondent’s Bill of Costs, I find that:
(a) While the respondent had a right to retain counsel of his choosing, it does not necessarily mean that the applicant has to pay for all counsel’s time. I do not find that it is fair to make the applicant pay for Mr. Sennecke’s time associated with the interim disbursements motion. The respondent already had senior family counsel and a senior associate, among others, working on the motion. This means the $7,395.00 associated with Mr. Sennecke’s involvement is removed from the respondent’s Bill of Costs.
(b) With respect to time spent by Mr. Halpern (15.6 hours), Ms. Caplan (55.60 hours), and law clerk Ms. Delmar (7.3 hours), I find that the time spent is excessive. Upon review of the docketed time, I would reduce the fees associated with their time by 50%. I would not adjust Ms. Roopnarine’s (Sr. Law Clerk) time.
[14] The respondent’s recalibrated fees are as follows:
Lawyer
Hours
Rate
Fees
Robert Halpern
1985 Call
15.60/2 = 7.8
rate @735.00
$5,733
Alexander Sennecke
1987 Call
0.00
rate @425.00
$0
Erin Caplan
2012 Call
55.60/2 = 27.8
rate @450.00
$12,510
Erin Delmar
(Law Clerk)
7.30/2 = 3.65
rate @200.00
$730.00
Ananta Roopnarine
(Sr. Law Clerk)
2.7
rate @ 250.00
$ 675.00
Revised Total Fees
$ 19,648
[15] I disagree that the respondent’s Offer to Settle attracts the higher costs consequences under Rule 18 of the Family Law Rules. The Offer, sent on the day before the August 11 motion, was relatively unattractive as it offered the applicant either $50,000 or $100,000 in interim disbursements with certain strings attached.
[16] As I do not find that the respondent’s Offer to Settle comes into play, and as I find no basis upon which the substantial indemnity rate of 80% is justified, I find that the appropriate costs resolution is to use the partial indemnity rate of 66% of the revised costs, hence $12,967.68 (i.e. 66% of $19,648). HST of $1,685.79 must be added. Accordingly, costs in the amount of $14,653.48 are owed, which I would round up to $15,000.
[17] The applicant requests that costs should be in the cause, or that they should not be payable until she disposes of one of her properties.
[18] I disagree and find that, given the far more modest sum of $15,000 that I am awarding in relation to the $41,598.46 the respondent requested, there is no compelling reason to depart from the norm that costs should be payable within 30 days.
[19] Within seven days of the release of this endorsement, a draft order approved as to form and content and a clean copy of the draft order in WORD format shall be directed to my judicial assistant at her email address: Patricia.Lyon-McIndoo@ontario.ca.
Pinto J.
Released: October 24, 2022
COURT FILE NO.: FS-19-09107
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.M.
Applicant
– and –
C.B.
Respondent
COSTS ENDORSEMENT
Pinto J.
Released: October 24, 2022