Burnett v. Ffrench, 2011 ONCJ 551

Toronto (North York) Registry No. D4753-09A4 DATE: 2011·XI·04 CITATION: Burnett v. Ffrench, 2011 ONCJ 551 ONTARIO COURT OF JUSTICE BETWEEN: JANELLE ANTONETTE BURNETT, Applicant, — AND — ROHAN ANDREW FFRENCH, Respondent. Before Justice Stanley B. Sherr Heard in chambers Endorsement inscribed on 4 November 2011 CIVIL PROCEDURE — Costs — Assessment of quantum — Party under legal subsidy — Legal aid — Fact that mother was on legalaid was irrelevant factor for determination of costs.

CIVIL PROCEDURE — Costs — Entitlement or liability — Presumption of entitlement for successful party — Measure of success —At motion for costs in dispute over access and child support, trial judge first looked to offers to settle that parties had exchanged but, forpurposes of subrule 18(4) of Family Law Rules, neither was as good as or better than final result — Moreover, for purposes of subrule18(16), neither offer was better than other — So judge then turned to positions that parties had taken at trial — On this basis, mother wassuccessful, proposing that access start with supervised visits, expand to supervised exchanges and then day visits, which was close tofinal result — By contrast, father’s position at trial that access be unsupervised was unreasonable, in light of his history of erratic visitingpatterns and his behaviour that tended to upset and alienate child — In fact, during trial, father chose not to exercise interim accessawarded to him, which was also unreasonable — Trial judge awarded mother her costs on partial indemnity basis.

CIVIL PROCEDURE — Costs — Jurisdiction — Costs generated on “hybrid time” attributable both to prior step in case and to trial —Ordinarily, trial judge should refuse to deal with claim for costs that were addressed or should have been addressed at previous steps ofcase — For that reason, trial judge rejected costs claim for attending at first appearance court and preparation and attendance atconferences — But judge may deal with costs of certain matters in case that were not attributable to any particular step in case — In thiscase, judge allowed successful party’s legal fees claimed in preparing pleadings and for time claimed for trial preparation — Trial judgeadded that court may also properly entertain costs for work with hybrid characteristics, attributable to earlier stage and to trial (e.g.,getting and reviewing financial disclosure; interviewing potential witnesses; and obtaining and reviewing third-party documents, such aspolice, medical and therapeutic reports) — Lawyers seeking hybrid costs should indicate to trial judge what percentage of these hybridcost were attributable to trial stage and how they arrived at that percentage.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended]. Family Law Rules, O. Reg. 114/99 [as amended], subrule 18(14), subrule 18(16), subrule 24(1), subrule 24(10) and subrule 24(11). CASES CITED Alvarez v. Smith, , 53 R.F.L. (6th) 53, [2008] O.J. No. 941, 2008 Cars​well​Ont 1337 (Ont. Fam. Ct.), Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.). Czirjak v. Iskandar, 2010 ONSC 3778, [2010] W.D.F.L. 3620, [2010] O.J.

No. 2929, 2010 Cars​well​Ont 4849 (Ont. S.C.).

Delellis v Delellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam.Ct.). Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L. (6th) 274, [2005] O.J. No. 5715, 2005 Cars​well​Ont 7809 (Ont. C.J.). Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, 41 R.F.L. (6th) 10, [2007] O.J. No. 3416, 2007 Cars​well​Ont 5718 (Ont. C.A.). Kardaras v. Kardaras, 2008 ONCJ 616, [2008] O.J. No. 5721 (Ont. C.J.). Lawson v. Lawson, , 167 A.C.W.S. (3d) 723, [2008] W.D.F.L. 3600, [2008] O.J. No. 1978, 2008 Cars​well​Ont 2819(Ont. Fam. Ct.). Pollitt v. Pollitt, 2011 ONSC 3162, [2011] O.J.

No. 3029, 2011 Cars​well​Ont 5873 (Ont. S.C.). Ramcharitar v. Ramcharitar, Jagam and Legal Aid Ontario (2002), (ON SC), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435,27 C.P.C. (5th) 331, [2002] O.J. No. 4238, 2002 Cars​well​Ont 3666 (Ont. S.C.). Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​well​Ont 2475 (Ont. C.A.). Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). David A. Weisman ........................................................................ counsel for the applicant mother S.

Leonard Kotylo ........................................................................ counsel for the respondent father For previous proceedings, see: Burnett v. Ffrench, 2011 ONCJ 527, [2011] O.J. No. 4781, 2011 Cars​well​Ont 11686 (Ont. H.C.), perJustice Stanley B. Sherr. [1] JUSTICE S.B. SHERR (endorsement):— The trial decision in this case was released on 7 October 2011. The trialdealt with issues of access and child support. The parties were invited to make written costs submissions and have now done that. Theapplicant seeks costs of $11,900 on a substantial indemnity basis.

The respondent asks that no costs order be made. [2] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J.

No. 1905, 2009 Cars​-well​Ont 2475, confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnifysuccessful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants,bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by theunsuccessful party. [3] Subrule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended (the rules), creates a presumption of costs infavour of the successful party.

Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). To determine whether a party has beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See Lawson v. Lawson,, 167 A.C.W.S. (3d) 723, [2008] W.D.F.L. 3600, [2008] O.J. No. 1978, 2008 Cars​well​Ont 2819 (Ont. Fam. Ct.). Theposition each party took at trial should also be examined. [4] Both parties made offers to settle.

In reviewing the respective offers, it is very surprising that this case was not settled. The applicant made an offer to settle that covered both the access and child support issues. The terms of her offer to settle the accessissue was comparable to the final decision of the court. She also offered to settle child support on the basis of fixing the respondent’sincome at $46,359 per annum.

The respondent made a counter-offer agreeing to the access terms of the applicant, but fixing therespondent’s annual income at $40,912 for assessing child support. [5] The respondent’s annual income was assessed at $43,129. [6] Neither offer to settle was as good as or better than the final result. The costs consequences of subrule 18(14) of therules do not apply. [7] Subrule 18(16) of the rules permits the court to consider any offer to settle in assessing costs. In this case, the partieshad agreed to the terms of access, subject to agreement on child support.

Neither offer to settle was better than the other. [8] This would have been a good case to sever the access and support issues in the offers to settle. There was no need toconduct a trial over access. [9] The next step is to examine the positions taken at trial. This is where the applicant was successful. With respect toaccess, she adopted the position in her offer to settle to start with supervised visits, expand to supervised exchanges and then day visits. This was close to the final result. The father took the position that access should be unsupervised.

For the reasons set out in mydecision, this was an unreasonable position for him to take. [10] The parties, to their credit, agreed at the outset of the trial to the respondent’s annual income. Surprisingly, therespondent would not agree to the table amount of child support as set out in the Child Support Guidelines, O. Reg. 391/97, as amended. He made a late request for an undue hardship claim. The outcome in favour of the applicant was inevitable.

[11] In making this decision I have considered the factors set out in subrule 24(11) of the rules which reads as follows:

(11) Factors in costs.— 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 orwitnesses, 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. [12] This was a simple case. It was important to the parties. [13] The applicant took reasonable positions. The respondent did not exercise the temporary access awarded to him. Hisposition at trial was unreasonable. [14] It is appropriate to award the applicant her costs on a partial indemnity basis. [15] The rate claimed by the applicant’s lawyer was reasonable for someone with his experience. The respondent argued thatthe applicant, being on legal aid, is restricted to seeking costs at the legal aid rate.

However, the case law is well settled that the receiptof legal aid is not a factor in determining costs. See Ramcharitar v. Ramcharitar, Jagam and Legal Aid Ontario, (2002), (ON SC), 62 O.R. (3d) 107, 32 R.F.L. (5th) 435, 27 C.P.C. (5th) 331, [2002] O.J. No. 4238, 2002 Cars​well​Ont 3666 (Ont. S.C.),at paragraph [25] and Alvarez v. Smith, , 53 R.F.L. (6th) 53, [2008] O.J. No. 941, 2008 Cars​well​Ont 1337 (Ont. Fam.Ct.), at paragraphs [17]-[19]. [16] The time claimed by the applicant’s lawyer was more problematic.

He included time for work performed for prior stepsin the case, such as first appearance court, case conferences and settlement conferences. Subrule 24(10) sets out that costs are to bedetermined in a

summary manner after each step in the case by the presiding judge. A “step” in the case is one of the discrete stagesrecognized by the rules such as a case conference, settlement conference and the like. See Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L.(6th) 274, [2005] O.J. No. 5715, 2005 Cars​well​Ont 7809 (Ont. C.J.). The trial judge should not deal with requests for costs that wereaddressed or should have been addressed at these prior steps in the case. See Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, 41R.F.L. (6th) 10, [2007] O.J. No. 3416, 2007 Cars​well​Ont 5718 (Ont.

C.A.). [17] This principle does not mean that counsel seeking costs after a trial are restricted to only asking for costs incurred afterthe final settlement conference. Certain work on a case will have no relation to any particular step in a case and, if not already claimed inthe case, it is appropriate to ask a trial judge to deal with this time spent. In Czirjak v. Iskandar, 2010 ONSC 3778, [2010] W.D.F.L.3620, [2010] O.J. No. 2929, 2010 Cars​well​Ont 4849 (Ont. S.C.), Justice Craig Perkins wrote in paragraph [5]: [5] . . .

However, there are a number of steps for which costs cannot be recovered until the finaladjudication or settlement of the case.

These include initial interviews, meetings and settlementdiscussions before filing the application, the application document itself, the reply, financial statements(not prepared for motions or conferences), questioning (in relation to issues for trial) and settlementmeetings relating to issues for trial. . . . [18] Other work on a case will have hybrid characteristics — the work might be attributable to a motion or case conference aswell as a trial (for example, obtaining and reviewing financial disclosure, interviewing potential witnesses and obtaining and reviewingthird party documents, such as police, medical and therapeutic reports).[1] If these costs have not already been addressed at an earlierstep in the case, counsel should be able to ask the court to assess what portion of these hybrid costs are attributable to the trial step.[2] [19] It will be helpful for judges deciding these cases if counsel clearly set out in their costs submissions how they haveapportioned these hybrid costs to the trial step. [20] In this case, it is appropriate to compensate the applicant for her legal fees claimed in preparing pleadings.

She needed tobring this court action to obtain the relief she sought. She should also be compensated for the time claimed for trial preparation. I findthat the time claimed for these steps (15.5 hours) to be very reasonable. The time claimed for attending at first appearance court andpreparation and attendance at conferences in the case will not be allowed. [21] The expenses claimed by the applicant’s counsel are reasonable. [22] The applicant is on social assistance. Deductibility of legal expenses not a factor in this case. See Pollitt v. Pollitt, 2011ONSC 3162, [2011] O.J.

No. 3029, 2011 Cars​well​Ont 5873 (Ont. S.C.). [23] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.), and Delellis vDelellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam. Ct.). Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis v Delellis and Delellis, Justice DavidR. Aston wrote at paragraph [9]:

[9] However, recent cases under the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, as amended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. . . . [ 24 ] I find that the respondent has the ability to pay the costs award that will be made. [ 25 ] Weighing all of the considerations set out above, the respondent is to pay the applicant her costs fixed at $4,500, inclusive of fees, disbursements and HST. This sum shall be due and payable within 90 days.