Ruling on Costs of a Trial

Court File No.: FC-05-2440-01 Date: 2023-02-23 Ontario Superior Court of Justice

Between: N.T., Applicant Mother (Responding Party) – and – P.T., Respondent Father (Moving Party)

Counsel: H. Keith Juriansz and Akshay Sandir, for the Applicant Mother Brigitta Tseitlin, for the Respondent Father

Heard: February 9, 2023 Released: February 23, 2023

Justice: Alex Finlayson

Part I: Overview

[1] The Court heard a trial of the Respondent Father’s Motion to Change and the Applicant Mother’s Response to Motion to Change over six days in May of 2022. There was also a pre-trial attendance before me as the trial judge, to address certain trial management issues. The Court requested further written submissions respecting a legal issue post-trial, before it released its Judgment dated September 15, 2022 (N.T. v. P.T., 2022 ONSC 5262) (the “September 15, 2022 Judgment”). The parties then appeared before the Court twice more on November 14, 2022 and February 9, 2023, to deal with certain tax issues arising out of the September 15, 2022 Judgment, and costs.

[2] The issues for trial were:

(a) The father asked the Court to set aside the consent Order of Leef J. dated April 25, 2022. That consent Order made final an earlier temporary consent Order of Fryer J. from 2018, which terminated child support for the parties’, now adult daughters, N.T. and S.T., on two different dates in 2017 and 2018. In moving to set aside the final Order, the father sought to disturb the 2018 termination date for S.T. only, to substitute it with an earlier date. In so doing, the father claimed that he overpaid child support and he wanted an order for the repayment of the alleged overpayment;

(b) The mother sought a retroactive order requiring the father to contribute towards N.T.’s and S.T.’s student loans;

(c) The father sought to terminate the spousal support of $1,118.00 per month that he was required to pay pursuant to the final Order of Magda J. dated January 19, 2011; and

(d) The mother opposed that request, and instead asked for an order for increased spousal support from January 2018 forward, without any future termination date.

[3] In the September 15, 2022 Judgment, I dismissed the father’s claims to set aside the consent Order of Leef J. dated April 25, 2022 and to terminate spousal support. I also dismissed the mother’s claim for the father’s contributions towards the student loans. I ordered increased spousal support commencing February 1, 2018, without a termination date.

[4] The mother seeks costs of approximately $80,000.00, which she characterizes as costs falling somewhere in between “partial and full indemnity”. The father says that success was roughly divided and that there should be no costs. Alternatively, he says the Court should order no more than $15,000.00.

[5] For the reasons that follow, I find that the mother is entitled to costs. I find that the father shall pay costs of $55,000.00, inclusive of HST and disbursements.

Part II: Issues and Analysis

A. Entitlement to Costs

[6] Section 131 of the Courts of Justice Act provides that costs are in the discretion of the Court. The framework for awarding costs in a family law case is set out in Rule 24 of the Family Law Rules.

[7] Modern costs rules are designed to foster three fundamental purposes: to partially indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate behaviour by litigants. Rule 2(2) of the Family Law Rules adds a fourth, to ensure that cases are dealt with justly: see Mattina v. Mattina, 2018 ONCA 867, at para. 10.

(1) Success

[8] An important factor in the determination of costs is success. Rule 24(1) provides a presumption that the successful party is entitled to costs of a trial. The Court may apportion costs if success is divided pursuant to rule 24(6).

[9] The assessment of success is contextual. The determination of whether success was truly divided does not simply involve adding up the number of issues and running a mathematic tally of which party won more of them: see Thompson v. Drummond, 2018 ONSC 4762, at para. 12. The assessment involves a comparative exercise: see Jackson v. Mayerle, 2016 ONSC 1556, at para. 66. Having some success on some issues may or may not be enough to impact costs. Most family cases involve multiple issues. Not all issues are equally important, equally time-consuming or equally expensive to determine.

[10] I find that the mother was the successful party. As I already found at ¶ 12 of the September 15, 2022 Judgment, there is no question that the most significant issue for trial was spousal support. While the father enjoyed some success resisting the mother’s claim for his contribution towards N.T.’s and S.T.’s student loans, I would not significantly discount the mother’s success and thus her claim for costs, under rule 24(6). Any success of the father respecting the student loans is counterbalanced by the mother’s success in resisting his claim to set aside the consent Order of Leef J. dated April 25, 2022.

(2) The Successful Party’s Behaviour

[11] Pursuant to rule 24(4), the Court may deprive a successful party of all or part of the party’s own costs, and even order that party to pay the unsuccessful party’s costs, if she has behaved unreasonably during the case. The Court is to examine the factors in rule 24(5) in deciding whether a party has behaved reasonably or unreasonably.

[12] The mother argues that the father behaved unreasonably, citing this rule. But the father is not claiming costs as a successful party. And there is no suggestion that the mother, as the successful party, behaved unreasonably within the meaning of these rules, to be deprived of her costs. Therefore, rule 24(4) does not impact my analysis.

[13] I will nevertheless consider certain aspects of the father’s behaviour later, when deciding the amount of costs to order under rule 24(12).

(3) Offers to Settle

[14] Rule 18(14) provides for increased costs where a party makes an Offer to Settle and then obtains an order that is as favourable or more favourable than the offer. [1] Both parties served Offers to Settle. But I find that rule 18(14) does not apply respecting either party’s Offers.

(i) The Father’s Offers to Settle

[15] The father served two Offers to Settle dated April 27, 2022 and May 11, 2022.

[16] In his first Offer of April 27, 2022, the father proposed to continue to pay spousal support of $1,118.00 per month, for only three more months after the trial. In the second one of May 11, 2022, he offered to continue the support for another 18 months after the trial. In both Offers, he proposed to pay nothing on account of the student loans.

[17] While the Court did not order the father to contribute to the student loans, the Court increased spousal support both retroactively and prospectively. The Court did not order a termination date. Neither of the father’s Offers were severable. Rule 18(14) is not engaged respecting either of the father’s Offers for these reasons.

(ii) The Mother’s Offers to Settle

[18] The mother also served two Offers to Settle, both on May 5, 2022. In one of her Offers, the mother proposed that the father pay a total of $15,688.41 towards N.T.’s and S.T.’s student loans within 90 days. As the Court dismissed her claim respecting the student loans, this Offer does not engage the cost consequences of rule 18(14).

[19] This situation respecting the mother’s other Offer is slightly more complicated. She proposed that the father pay different amounts of periodic spousal support, retroactively to January 1, 2018, and continuing on a go-forward basis. Now the Court did order monthly amounts for each year from February 1, 2018 forward in the September 15, 2022 Judgment and the gross amounts it ordered are indeed higher than the amounts in the mother’s Offer (see ¶ 255 of the September 15, 2022 Judgment, compared to the amounts in mother’s Offer). But the Court also invited submissions respecting the tax treatment of the retroactive amounts it ordered, and on November 14, 2022, it quantified the retroactive support into a lump sum, after tax adjusting the amounts.

[20] As I noted at ¶ 248 to 254 of the September 15, 2022 Judgment, during the trial the parties told the Court about the times during which they had reported, or failed to report, the spousal support previously paid and received pursuant to Magda J.’s Order dated January 19, 2011, to the Canada Revenue Agency (“CRA”). The father complained that he had been denied a tax deduction by the CRA for various reasons. At ¶ 251, I noted that the parties agreed that the Court would make findings as to what the father paid each year beginning in 2018, what amounts he was entitled to deduct from his income, and what amounts the mother was required to include in her income, to assist them to rectify the situation with CRA. But when I reviewed the matter further while under reserve, I realized that I could not do this, because there was insufficient evidence before the Court as to those amounts. It was also unclear whether any findings of the Court in this regard would work to grant tax relief.

[21] At ¶ 252-253, I invited submissions about how to resolve this. But now added to this issue, there was the additional issue about the tax treatment of the retroactive amounts being ordered in the September 15, 2022 Judgment. I asked counsel to try to resolve both problems on consent, failing which they could make submissions and I would decide.

[22] At the post-trial attendance before me on November 14, 2022, the parties generally agreed that the retroactive spousal support that I ordered up until the end of 2021, should be netted out for tax, less the father’s payments to date. [2] They did not agree on the final number. After hearing the submissions, the Court fixed a lump sum of $30,000.00, plus a small amount of $750.00 on account of interest.

[23] So, while at first blush, if one were just to compare the monthly amounts in the September 15, 2022 Judgment to those in the Offer, it might be said that the mother beat her Offer, the mother’s Offer does not go on to address the tax consequences of the retroactive support she was prepared to accept. The Offer does not state whether the amounts proposed were intended to be gross or net of tax. It does not tax adjust the amounts. It does not propose that the parties sort this out later either, in a process like that which the Court set out in the September 15, 2022 Judgment, and which it subsequently employed on November 14, 2022.

[24] According to Ms. Tseitlin’s latest submissions/calculations during the hearing on costs, the mother’s Offer would have actually required the father to pay her $42,000.00, without any tax relief. That is $12,000.00 more than the lump sum of $30,000.00, that the Court eventually fixed on November 14, 2022.

[25] I find that rule 18(14) does not apply to this Offer.

B. Quantum of Costs

[26] Pursuant to rule 24(12)(a), in setting the amount of costs, the Court shall consider the reasonableness and proportionality of a list of factors as they relate to the importance and complexity of the issues. Pursuant to rule 24(12)(b), the Court is also to consider any other relevant matter.

[27] To embark upon the analysis under rule 24(12)(a) properly, the Court must first specify how important and complex the issues actually were. No submissions were made respecting rule 24(12)(b), so I say nothing further about it.

(1) The Importance of the Issues

[28] I accept that the outcome of this this trial, especially about spousal support, was important to both parties in different ways.

[29] From the father’s perspective, I accept that he legitimately wanted a determination about whether his obligation to pay spousal support had been satisfied given the passage of time during which he had already paid support. I accept that the case law about spousal support when there is a disability does not always provide clear guidance, either.

[30] On the other hand, the Court has already made at least two findings relevant to importance from the mother’s perspective:

(a) At ¶ 204 of the September 15, 2022 Judgment, and over the several paragraphs that follow, the Court found the evidence about the mother’s health and disability to be overwhelming. The Court had no hesitation in finding that the mother is significantly ill and permanently disabled, and that she has no ability to maintain paid employment; and

(b) At ¶ 225 to 237 of the September 15, 2022 Judgment, the Court found that the mother had a number of needs for which she requires spousal support. The Court found that the mother has a very poor quality of life.

[31] I find that the outcome of this trial about spousal support was particularly important to the mother, given her very problematic health and her significant need. Relatedly, the outcome of the request to set aside the consent Order of Leef J. was financially important to her too, given the potential adverse financial consequences to her flowing from a repayment order, had the father succeeded with that claim.

[32] Therefore, where there is a dispute about the reasonableness and proportionality of the time now claimed on a Bill of Costs, I keep these notions of importance in mind.

(2) The Complexity of the Issues

[33] The parties each raised or responded to a number of evidentiary and legal issues during the trial. For example, the parties called evidence relevant to the material change threshold and the mother’s ongoing entitlement to spousal support. This included, as part of the mother’s case, the evidence of a health care practitioner. The father cross-examined on the health evidence and gave evidence of his own.

[34] There were evidentiary issues about the mother’s request for tuition costs. The calculation of the father’s income was in issue. Disclosure and evidentiary issues were raised about that, too. The parties called evidence about the mother’s financial need. As I have already mentioned, there were tax issues to be addressed after the trial.

[35] Spousal support was of moderate legal complexity in this case. In the September 15, 2022 Judgment (and again in this ruling on costs), I referred to the state of the case law respecting spousal support and disability. The father’s request for a termination was heavily based on the passage of time during which he had paid support. The mother argued that certain precedent, upon which the father relied, was incorrectly decided. Each counsel advanced different interpretations of the case law, which the Court considered.

[36] Just a few days post-trial, the Ontario Court of Appeal released the decision in McGuire v. Bator, which had some bearing on this matter. The Court requested that the parties provide additional submissions in writing. The mother relied on the case. In his submissions, the father then took issue with the applicability of this recent decision. He argued that the case was not only distinguishable, but aspects of it were incorrectly decided. The Court addressed his arguments in the September 15, 2022 Judgment.

[37] Other legal issues came up during the trial, not just about spousal support. Although not particularly complex, legal issues were raised respecting the tuition claim, the father’s request to set aside Leef J.’s consent Order of April 25, 2022, and the calculation of the father’s income. But they still had to be argued and addressed, and the parties spent time preparing for their presentation, and then actually addressing them.

[38] Therefore, where there is a dispute about the reasonableness and proportionality of the time now claimed on a Bill of Costs, I keep the amount of issues that were raised and addressed, and these notions of complexity, in mind.

(3) Rule 24(12)(a)(i): The Reasonableness and Proportionality of Each Party’s Behaviour in Relation to Importance and Complexity

[39] The mother’s arguments that the father behaved unreasonably are three-fold.

[40] First, the mother argues that the father behaved unreasonably by requiring her to prove her health circumstances for the spousal support claim. Leading up to the trial, the mother sought concessions about her health and disability, and its impact on her ability to earn an income, from the father. The father gave some, but not all of the concessions that the mother sought. According to the mother, had they been given in full, the trial would have been shorter and less expensive.

[41] Although he did not fully concede certain matters pre-trial, as I already found at ¶ 210 to 212 of the September 15, 2022 Judgment, the father then admitted during his testimony to having an awareness that the mother’s condition was debilitating. He claimed not to be disputing that the mother would never be able to achieve financial self-sufficiency. But he also went on to argue in cross-examination about whether the mother was truly disabled and intimated that she might be able to do some work in the future. He did this while simultaneously acknowledging that he did not read much of the voluminous medical disclosure that had been produced prior to trial.

[42] Second, the mother takes issue with the father’s decision in the days leading up to the trial, to add into the mix of the Orders he sought at the trial, his request to set aside Leef J.’s consent Order dated April 25, 2022. She especially takes issue with the manner in which he pursued this claim.

[43] In particular, going into the trial, the father accused the mother of non-disclosure and misrepresentation. By the end of the trial, he abandoned the argument based on misrepresentation, and recast the claim as grounded in the doctrine of mistake. He was not successful on any of these bases.

[44] Third, the mother was critical of the manner in which the father resisted her claim for a contribution towards N.T.’s and S.T.’s tuition, too. The father’s principal objection to her claim rested on the absence of his relationship with the children for a number of years. To prove this, he sought to re-litigate years of history about parenting, that would not have otherwise been before the Court. The Court rejected these arguments about the termination of the parent-child relationships: see ¶ 114-118 of the September 15, 2022 Judgment.

[45] In this three part context, the question that I must now decide is whether the Court should sanction the father by way of increased costs for this behaviour? I decline to do so, for the following reasons.

[46] At ¶ 89-97 of Climans v. Latner, 2020 ONCA 554, the Ontario Court of Appeal explained that the lack of success respecting a legal position is not tantamount to unreasonable behaviour in itself, to justify elevated costs. Of course, reasonableness and proportionality are to be judged in context and that includes both a consideration of the matters in issue and the positions taken by the parties: see Climans v. Latner, at para. 107. And while both the father’s pre-trial refusal to accept fully the real state of affairs about the mother’s health, followed by some of his comments made during the trial about the mother’s health and employability, were unfortunate and problematic, in the totality of the circumstances of this case, I would not find these aspects to rise to the level of warranting increased costs.

[47] It is true that in the absence of an agreement as to certain facts, the mother had to call evidence about her health. But it was also wise of the mother to call this evidence, independently of the father’s pre-trial concessions or lack thereof. Even though certain facts may be agreed to in a case, sometimes it will still be good advocacy to call certain evidence anyway (within reason), to enable the Court to make important findings, that in turn can follow through into the analysis.

[48] In this case, the failure of the parties to agree to certain facts contributed to the mother making out her case. She had no choice but to call the very strong evidence that she called about her health. In so doing, she persuaded the Court as to the various elements of her claim for increased retroactive and prospective support.

[49] Moreover, I also recognize again, that the parties put before the Court numerous authorities about spousal support and disability, with differing outcomes. Given the state of the law and the difficult nature of support and disability cases (see for example the commentary in the Spousal Support Advisory Guidelines: The Revised User’s Guide, Chapter 12.4), and in keeping with the Ontario Court of Appeal’s comments in Climans v. Latner (see again ¶ 89-97, and see ¶ 94 in particular), I decline to say that it was unreasonable for the father to have advanced a legal position seeking a termination of his obligation to pay spousal support, now that it is known that he has not succeeded.

[50] Perhaps in contrast, there is a different matter respecting the reasonableness of the father’s behaviour vis a vis spousal support, which I intend to briefly mention. I do so because it has broader import for other cases.

[51] At ¶ 53 to 59, and again at 85-90 of the September 15, 2022 Judgment, I explained that the father came into this trial owing spousal support arrears. I explained how that problematic situation came to be. This was before retroactivity was even determined, and this Court’s September 15, 2022 Judgment created even more arrears. I also explained how this impacted the mother. A situation was created whereby she was allowed to go without the support that she needed for some number of months. I was critical of the father for this especially in light of the mother’s needs.

[52] I would have been prepared to consider this aspect of the father’s conduct, now in this costs analysis. That is because the failure of a payor to meet his or her court ordered obligations, causing financial harm to a former spouse, may very well constitute unreasonable behaviour, or even bad faith behaviour, when it comes to costs. But it was not argued that the father behaved unreasonably by coming into a trial in a case like this owing support arrears, and then taking the position, erroneously, that he had overpaid support. Nor did the mother ask the Court to find bad faith. In the absence of submissions and out of a concern for procedural fairness, I will refrain from making such findings.

[53] The analysis respecting the father’s request to set aside Leef J.’s Consent Order is somewhat different. At ¶ 69-90 of the September 15, 2022 Judgment, the Court found there was no basis to set aside the Order on any of the bases raised, for five different reasons. Among others, at ¶ 83 and 84 of the September 15, 2022 Judgment, the Court found that the father entered into two different agreements, over a four-year period, respecting the termination dates for child support. The Court found that he had been armed with sufficient information, and ample time, to make these decisions. In that context, it was not reasonable for the father to have added this issue into the mix as the trial approached, given this factual backdrop. The Court had no hesitation in dismissing his claim.

[54] Similarly, in regards to the mother’s claim for his contribution towards the children’s post-secondary expenses, the father could have simply resisted this claim based on the gaps in the evidence the mother called about it. That is the basis on which the Court dismissed her claim: see ¶ 120-130 of the September 15, 2022 Judgment.

[55] Perhaps the father did not fully appreciate what the gaps in the evidence would be until they came out in the evidence, as he presented his case first as the moving party. Still, his attempt to re-litigate historic parenting issues was nevertheless problematic, irrespective of the adequacy of the evidence that the mother eventually called when her time came as the responding party.

[56] I contemplated whether these two approaches to the litigation by the father were more problematic than merely taking an unsuccessful legal position. But in regards to the father’s claim to set aside the consent Order of Leef J., in the grand scheme of this case this issue was not particularly time consuming. And any finding that I might have otherwise made about the reasonableness of his approach to the claim for tuition costs will be tempered with the fact that the father was responding to a claim of the mother’s. She did not succeed respecting that claim on its merits.

[57] Therefore, while I have some reason to question certain aspects of the father’s conduct, in the end result, I would not order increased costs. The mother will still receive significant costs recovery. As the Ontario Court of Appeal said at ¶ 91 of Climans v. Latner, where one party forces the other to prove its case and is unsuccessful, the length of the trial will be reflected in the Bill of Costs of the successful party. I see no reason why this principle should not apply when considering the father’s arguments that the mother’s lawyer’s Bill for pre-trial preparation is excessive, either. I address that below.

(4) Rule 24(12)(a)(iii): The Reasonableness and Proportionality of Each Party’s Written Offers to Settle that Do Not Meet the Requirements of Rule 18, in Relation to Importance and Complexity

[58] I have already explained why rule 18(14) is not engaged respecting either party’s Offers. But pursuant to rule 18(16) and rule 24(12)(a)(iii), the Court may nevertheless take into account written Offers in determining costs, even if rule 18(14) does not apply.

[59] I am prepared to accept that both parties made some effort to settle spousal support and the issue about the children’s tuition costs this case, in line with how they saw the issues and in line with their counsel’s read of the case law. But neither side’s Offers were overly reasonable. I would not fault either of them, for failing to accept the other’s Offers, as a consequence.

[60] For example, it was entirely appropriate for the mother not to have accepted either of the father’s Offers to Settle. Had she, the support she very much needs would have ended already or it would in the near future end, leaving her unable to meet her needs and leaving her in dire financial straits.

[61] Similarly, given the result, it was reasonable for the father not to have accepted the mother’s Offer to Settle the tuition issue. In light of my findings above about the tax consequences, it was also appropriate for the father not to have accepted the mother’s spousal support Offer either.

[62] While the father probably could have responded to the latter and engaged in some additional negotiations about tax to try to settle the case, I recognize that I am making this observation with some degree hindsight. I am not privy to what discussions occurred in case management prior to trial. In any event, given the nature of the spousal support issue, I am prepared to accept that those discussions may have only been meaningfully able to occur in this particular case, after the Court first settled the critical issues of material change and ongoing entitlement, and that only happened in the September 15, 2022 Judgment.

[63] I find that this factor about the parties’ Offers is a neutral one in my overall analysis about the quantum of costs.

(5) Rules 24(12)(a)(ii), (iv) and (vi): The Reasonableness and Proportionality of the Time Spent, the Number of Lawyers, Hourly Rates, Legal Fees and the Bills of Costs, in Relation to Importance and Complexity

[64] When fixing costs, courts do not engage in a mechanical exercise of calculating hours, times and rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay: see Boucher v. Public Accountants Council for the Province of Ontario, at para. 24. Proportionality and reasonableness are the touchstone considerations: see Beaver v. Hill, 2018 ONCA 840, at para. 12.

[65] Rule 24(12.2) is fairly new, as of 2021. It requires a party who opposes costs to provide documentation showing that party’s costs. Although new, case law decided prior to this rule set out that it was good practice to do this. The losing party’s costs may act as a litmus test or yardstick to measure the proportionality and reasonableness of the amounts in the successful party’s Bill.

[66] Both parties complied with this new rule when making their costs submissions.

[67] Neither party took issue with the hourly rate charged by the other’s lawyers during submissions. But despite the similarity in the hourly rates of the principal lawyers for both sides, Ms. Tseitlin’s Bill for the father is about $30,000.00 less than Mr. Juriansz’ Bill for the mother.

[68] To try to explain this, Mr. Juriansz argued that Ms. Tseitlin omitted a number of charges from her Bill, suggesting that her Bill was deflated. In response, Ms. Tseitlin explained orally why her Bill was less than Mr. Juriansz’, saying that he had misread it or made invalid assumptions about it. I accept Ms. Tseitlin’s submissions about her Bill. I accept that she did not deliberately omit charges to deflate her Bill, for the purposes of this analysis.

[69] Ms. Tseitlin also made a number of specific complaints about Mr. Juriansz’ Bill, essentially saying he over charged his client. These complaints were voluminous in their number and were provided to the Court in a written document. Indeed, over several pages and numerous paragraphs of the written document, Ms. Tseitlin took issue with dozens of entries on Mr. Juriansz’ Bill, covering more than a two year period between 2019 and the trial.

[70] As part of the challenge to the Bill, Ms. Tseitlin took issue with the fact that Mr. Juriansz’ charged for different lawyers and law clerks within his office who worked on this case. But once again, I accept that Mr. Juriansz, a lawyer with some 45 years’ experience, exercised the discretion to delegate certain tasks to junior lawyers and clerks in his office, at lower hourly rates.

[71] To ensure fairness, the Court gave Mr. Juriansz an opportunity to respond to these challenges to his Bill in writing, within 7 days after the oral argument. He later confirmed by email to the judicial assistant on February 21, 2023, that he would not be providing a written response. He was content to rest on his oral submissions, already made.

[72] This Court is not required to engage in a line-by-line analysis of the hours claimed in Mr. Juriansz’ Bill. It is not realistic to expect that the Court will engage in this kind of analysis, especially when there is a challenge to such a large number of the charges. Nor would that necessarily be a fair approach. Were the Court to do so, it would risk unfairly criticizing counsel for allegedly ‘over preparing’. The Court finds that some latitude should be given, that counsel will exercise good professional judgment as to the work required, at the time they are doing that work, ‘on the ground’.

[73] Besides, what choice did counsel have in this case? The stakes were pretty high for the mother. She had to respond. Mr. Juriansz had to be prepared, or he risked losing for his client.

[74] Moreover, the Court wishes to again acknowledge and thank both lawyers for being well prepared and professional in their presentation. Both very much assisted the Court during the trial and with the post-trial matters. The Court would much prefer to have two, well prepared, experienced lawyers like Mr. Juriansz and Ms. Tseitlin, than to have the case presented in a disorganized fashion, perhaps leaving evidentiary gaps or legal issues unargued, at the end of the case. It goes without saying that preparation is essential to the good presentation of a case, and that takes time and costs money in legal fees.

[75] It is true that there are charges on the Bill for Mr. Juriansz and other lawyers/clerks issuing or receiving instructions from one another and participating in discussions about the case. But this is not necessarily overlapping or ‘double billing’. To achieve certain efficiencies, Mr. Juriansz would have had to spend some time instructing others within his office and supervising their work. The point though, is that the work itself was then done at a lower hourly rate, likely at a greater savings to the client than had Mr. Juriansz just done it himself, even after the charges for the instructions and conversations are taken into account.

[76] I would also note that Mr. Juriansz had his associate, Mr. Sandhir, with him throughout the trial. Mr. Juriansz described Mr. Sandhir as instrumental to him during this case. There are charges on the Bill for Mr. Sandhir’s out of court work. But although Mr. Sandhir added value during the trial, Mr. Juriansz did not bill for Mr. Sandhir’s attendance at trial, at all.

[77] To this I add that the mother in this case was a vulnerable client with limited resources. The fact that Mr. Juriansz did not cut corners, and treated her no differently than he might treat another client with greater means, should be commended, not criticized.

[78] I do not intend to second guess the work Mr. Juriansz did, unless clearly excessive or overreaching: see Docherty v. Catherwood, 2016 ONSC 2140, at para. 50. I find that it is not.

[79] Finally, I echo again here what the Ontario Court of Appeal said in Climans v. Latner, that where one party forces the other to prove its case and is unsuccessful, that will be reflected in the Bill. While I have not sanctioned the father for any unreasonable behaviour, I am equally not prepared to engage in a micro exercise of scrutinizing dozens of individual entries on Mr. Juriansz’ Bill, after the fact. The Court has looked at the overall Bill, through the lens of proportionality and reasonableness, as it is required to do.

Part III: Summary and Conclusion

[80] In summary, the Court is fixing the costs owing to the mother at $55,000.00, inclusive of HST and disbursements. This is a slightly less than 60% of the mother’s total bill for fees, HST and disbursements. I believe this to be consistent with the approach taken by the Ontario Court of Appeal in Climans v. Latner, at para. 108.

[81] In fixing this amount, the Court is taking into account the mother’s success on the major issue, being spousal support. The Court is taking into account her modest lack of success respecting the claim for post-secondary expenses, but counterbalanced against the father’s lack of success on his request to set aside the Order of Leef J. The Court is not ordering any increased costs against the father for unreasonable behaviour, for the reasons articulated above. The Court is not reducing or taking issue with any particular entry on the mother’s lawyer’s Bill. But the Court is not ordering the total quantum asked by the mother, either. Although she asked the Court to order it, I do not find a basis for increased costs in this case. Likewise, the mother is not entitled to full recovery under the Rules, based on her Offers or based on behaviour.

Part IV: Order

[82] This Court orders that the father shall pay to the mother costs in the amount of $55,000.00, inclusive of HST and disbursements.

Justice Alex Finlayson Released: February 23, 2023

[1] There are other, specific requirements in the rule, but I need not discuss those, since I am finding that on a comparison of the offers to the result, the rule is not engaged. [2] They agreed it was not necessary to do this for 2022, since the parties could still include the amounts on their 2022 tax returns, when they file in 2023.