Gioia v. Bissaillion, 2011 ONCJ 716

Sault Ste. Marie Registry No. 82/2010 DATE: 2011·VII·26 CITATION: Gioia v. Bissaillion , 2011 ONCJ 716 ONTARIO COURT OF JUSTICE BETWEEN: ) ) kelly gioia ) Carol Shamess, ) for Kelly Gioia ) ) — AND — ) ) ) Jeffery bissaillion ) Lorna Rudolph, ) for Jeffery Bissaillion ) ) ) ) HEARD: On written submissions [ 1 ] JUSTICE J. KUKURIN:— This is a decision on a claim for costs made by the applicant mother following completion of her motion to change, both retroactively and prospectively, the provisions of child support contained in domestic contracts between the parties.

Formal written reasons on the motion to change were released March 21, 2011. The variation order based on those reasons is dated March 30, 2011. [ 2 ] The parties were directed to make written submissions on any claim for costs either wished to pursue. The mother is seeking costs. I have received written submissions of the mother, of the father in response, and of the mother in reply to that response. [ 3 ] The mother quantifies her claim for costs at $10,733.21. This is comprised of counsel fees of $10,705, and minor disbursement expenses of $28.21.

The mother’s counsel is a seasoned litigator claiming 32 years experience, a claim not disputed by the father. Her hourly rate is stated to be $275 per hour but evidently increasing to $325 per hour for her attendances in court. [ 4 ] The mother’s bill of costs from her counsel is not a detailed list of docket entries. Rather, it breaks down the legal services provided into three separate components:

(1) Preparatory services prior to the first court attendance, covering the period April 22, 2009 to December 6, 2010 (29 hours);

(2) Actual court attendances, seven in total, from December 2009 to December 2010 (8.4 hours);

(3) Disbursement details. [ 5 ] There are two rules in our Family Law Rules that have some bearing on costs in family matters, Rule 24 and Rule 18. [ 6 ] Rule 24 is the main rule. Subrule 24(1) creates a presumption that a successful party is entitled to costs of a motion, enforcement, case or appeal. [1] This requires a determination of whether there was a successful party, and who that was. In this case, the mother was clearly the successful party. She sought variation of child support, both retroactively and prospectively. She achieved both in this case.

While she was not awarded the $17,250 she was seeking in retroactive support, she did obtain a variation that was tantamount to a retroactive award of $15,400. This was considerably more successful than the father who sought to limit any retroactive variation (arrears) to $5,300. His motion to restrict arrears to October 2009 only, was dismissed. The mother obtained retroactivity back to the date from which she sought it, namely, January 1, 2006.

On any reasonable analysis of the outcome, the mother was unquestionably the successful party. [ 7 ] Rule 24 contains provisions [2] for depriving a successful party for all or part of the costs to which that party is presumptively entitled. It requires the court to examine three factors [3] prior to departing from the presumptive rule. In this case, I do not find the mother’s behaviour, either prior to or during the litigation of this case, to have been unreasonable.

While there were offers to settle, the mother’s position with respect to these was not unreasonable, in the circumstances, certainly not to the extent that it should deprive her of her costs, either totally or in part. [ 8 ] I do not find that there was divided success in the case that was before me. I decline to apportion costs. I would award no costs to the father. [ 9 ] Nor do I find bad faith on the part of the mother. She was reasonable in claiming retroactivity back only to January 2006 when she might have sought an earlier date. She was reasonable in what she sought as child support for the adult child.

She provided the financial and other documentation needed for the father to consider her claims, and when he sought more information, she gave this to

him. She was reasonable in her demands and in how she conducted herself, prior to and in the course of this litigation. [ 10 ] This should be contrasted with the father who was considerably less reasonable and who was flirting with conduct that bordered on bad faith. The most conspicuous examples were: (

a) failing to provide annual production of tax returns and notices of assessment for several years despite a contractual obligation to do so, and knowing full well that his annual income had increased; (

b) providing his 2007 and 2008 tax information rather late in the day; (

c) not ever providing his 2009 tax return, and failing to give any reason why not; (

d) attempting to limit a retroactive award to about one-third of what the mother was ultimately awarded; and (

e) providing information that his 2007 annual income was approximately $75,000, and failing to provide correcting information when it turned out to exceed $90,000. [ 11 ] Subrule 24(11) sets out factors that the court must consider in setting the amount of costs. [4] These do not comprise any exhaustive list since the last factor is “any other relevant matter”. [ 12 ] This was not a case that was either complex or difficult. The case before me had no prospective variation issues [5] as the parties had already agreed to this from January 1, 2010 onward.

The case was about retroactive variation for four complete calendar years. Those years had already come and gone. The major portion of the claim was for table amount of support. This is tied to the payor’s annual incomes for the years in question. Had the father’s annual income information been provided and in a timely fashion, the retroactivity issue would have been resolved, perhaps even without the necessity of argument. [ 13 ] I have already commented on reasonableness of the parties and their behaviours.

This factor clearly militates in favour of the mother. [ 14 ] I have some difficulty with the rates charged by the mother’s counsel. While $275 per hour is not excessive for a counsel with 32 years of experience, I don’t know why that rate increases to $325 per hour simply because the time spent is in court. Nor is the rationale that “that’s just the way it is” a satisfactory explanation. [ 15 ] The considerations listed clause “d” of subrule 24(11) are what comprises the bulk of the costs claimed by the mother. These form the basis for why she should receive some compensation by way of costs.

While it is somewhat difficult to quantify what amount of a costs award is referable to what particular legal service provided to a party in absence of a detailed and docketed bill of costs, the court does recognize that the litigation process has some features that are common to and essential for all matters to reach a final judicial resolution.

As long as the court finds the amounts claimed for these aspects of the process to be reasonable, it should approve the amounts involved. [ 16 ] The greatest difficulty I have with the mother’s claim for costs is the impact of subrule 24(10). [6] This subrule exists for a reason; in fact, for several reasons. [ 17 ] The first, from a judicial point of view, is the direction that the judge who dealt with a step in a case is the person who shall decide entitlement and quantum of costs of that step. The reality of litigation is that the same judicial officer does not deal with each and every step in a case.

Almost invariably, cases are made up of a number of legal steps. There is no one more suited to dealing with costs of a step than the judge who presided at or was involved in that step. In this case, the record indicates judicial endorsements on five different court dates made by four different justices over a period of four months before this case even reached this court.

To ask this court to include in its award of costs, compensation for legal services that relate to attendance before other judges, not even of this court, the mother is asking this court to disregard the clear injunction in subrule 24(10) with respect to who is to award costs for what. [ 18 ] The second is that costs of each step are to be decided promptly after that step. This is such a sensible direction that it is difficult to imagine why a litigant would defer his or her claim for costs to follow a final resolution of a case.

This final resolution might not be for a year or more later. [ 19 ] In reality, the only step before me in this court was the hearing of the argument of the motion to change. While this took place on three separate days, [7] the latter two dates were merely a continuation of the first.

What took place before me was only one step in the case. [8] [ 20 ] Accordingly, with respect to the portion of the mother’s claim for costs referable to the court attendances, I am prepared to allow: June 21, 2010 - 1.5 hours August 12, 2010 - 3 hours December 5, 20101 - 1.5 hours Total in this court - 6 hours at 275 per hour = $1650 [ 21 ] With respect to court attendances in the Superior Court, I do not disallow or dismiss the mother’s claim for costs relating thereto. Rather, I decline to consider such portion of her costs claim.

She should seek recourse in the Superior Court of Justice to pursue that portion of her claim for costs. I am prepared to transfer this case back to the Superior Court of Justice, on request, for this purpose. [ 22 ] The 29 hours that the mother’s legal counsel spent with the mother, or otherwise, to prepare the motion to change that was

ultimately heard by me posed somewhat of a problem. All such time was between April 2009 and December 2010. Technically, this all predated any step that took place in this court. It also seems like a lot of time spent over more than a year and a half before any initiating document was ever filed. [ 23 ] On the other hand, pre-litigation preparation is part and parcel of the motion to change. This was the litigation vehicle by which the issues in the case came before the court for adjudication.

It is a normal expectation of the court that litigants will do the preparation needed to properly present their cases to the court. It must be recognized that preparation is as integral to the motion to change as is the making of submissions in court. Moreover, it is difficult to consider “preparation” as a distinct step in the case. [ 24 ] Should the entire 29 hours be allowed? This is the problem. This time was spent on preparation for a motion to change that was entertained in different degrees in two different courts.

It is impossible to allocate what proportion of these 29 hours related to either one. [ 25 ] Fortunately, the impossible is not demanded of judicial officers who must determine costs. In fact, the subrule indicates that costs are to be judicially decided “in a

summary manner”. This permits me to make approximations provided that I provide my reasons for doing so. [ 26 ] In this case, I am inclined to allow 18 hours of preparation time rather than the 29 hours sought. The reasons briefly are: (

a) The main issues related to retroactive variation of table amounts. This is not complex considering that annual incomes should be determinable to the penny; (

b) The secondary claim for special expenses under section 7(1)(

e) was also far from complex; (

c) The legal issues were unremarkable; (

d) The mother who filed her motion to change was primarily responsible for the proceeding being started and continuing for several months in the wrong court; (

e) Allowing the full 29 hours is tantamount to full indemnity. For the foregoing reasons and, because the mother was not totally successful overall in terms of what she received compared to what she asked for (and what she offered to settle for), I am not inclined to award full indemnity costs; and (

f) Eighteen hours of “preparation time” should be more than ample for this case. [ 27 ] For this “preparatory” portion of her claim for costs, I would be prepared to allow: 18 hours at 275 per hour = $4,950 [ 28 ] I find nothing objectionable in the amount claimed for disbursements. [ 29 ] In addition to the motion to change step, I am also dealing with this claim for costs. I consider this to be a separate and distinct step in the case. The mother was seeking costs of $10,733. My inclination is to award her costs of $6,628.21 ($4,950 + 1,650 + 28.21) on the motion to change.

This amount represents roughly 60 percent of what she asked for by way of costs. The father did not state what amount of costs was appropriate for this court to order in favour of the mother. He merely offered argument on why the amount of costs sought by her ought not be awarded. [ 30 ] I recognize that litigating a claim for costs requires effort and expenses. I would, in this case, award the mother costs relating to the claim for costs in the amount of $495.

I calculate this as follows: Reasonable time for preparation including submissions - 3 hours Amount of costs 3 hours at 275 per hour - $825 Success rate 60 percent = $495 [ 31 ] In

summary, I would award to the mother globally: $6,628.21 (motion to change) + $495 (motion for costs) = $7,123.21 [ 32 ] The father’s argument relating to financial hardship resulting from an award of costs against him falls mostly on deaf judicial ears. While I sympathize somewhat with his financial plight, I really do not know for sure the basis for his crying poor. The main element in his financial situation is his annual income. He has not provided his actual income information for 2009, for 2010 and nothing for the current year 2011. [ 33 ] The mother is seeking that costs be payable at $100 per month.

This is a reasonable concession and provides him some relief. She also seeks that her costs be designated as costs relating to child support litigation so that enforcement of such costs can be effected by the Director FRO in the same manner as child support payments are enforced. My order will include this qualification as it reflects the true nature of such costs. Released: 26 July 2011 _____________________________________

Justice John Kukurin, Ontario Court of Justice [3] R. 24(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (

a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (

b) the reasonableness of any offer the party made; and (

c) any offer the party withdrew or failed to accept. [4] R. 24(11) A person setting the amount of costs shall consider, (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter.