2018 ONCJ 104, 2018 ONCJ 104

CITATION: Jackson v. Bobbie, 2018 ONCJ 104 DATE: February 16, 2018 COURT FILE NO. D46769/09 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) MARK JOHN JACKSON ) ) ) RICHARD TEICHER, counsel andKATRINA KAIRYS, law student, for theAPPLICANT ) APPLICANT ) ) - and - ) CASSANDRA ELIZABETH BOBBIE ) ACTING IN PERSON RESPONDENT ) ) ) ) ) )HEARD: FEBRUARY 15, 2018 JUSTICE S.B. SHERR COSTS ENDORSEMENT [1] On February 15, 2018, the parties agreed to the dismissal of the respondent’s (the mother’

s) motion to change this court’sparenting order, regarding the parties’ 13-year-old son (the child), dated March 2, 2009 (the existing order). Their agreement was subjectto the right of the applicant (the father) to seek his costs of the proceeding. [2] The father seeks his costs of $4,195.80 against the mother arising out of his motion to enforce the existing order and thedismissal of the mother’s motion to change. The mother asks that no costs be ordered. [3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.), stated that modern costsrules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation, toencourage 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 the unsuccessful party. [4] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates apresumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, (ON SC), [2000] O.J.

No. 330 (SCJ-Family Court). [5] The existing order grants the parties joint custody of the child with a week-about parenting schedule. [6] The father moved in June, 2017 to enforce this order, after the mother unilaterally restricted his access to the child. The motheropposed this motion. [7] On July 7, 2017, the court enforced the existing order and directed the mother to comply with it. The mother was instructed tobring a motion to change if she felt that a change in the parenting arrangement was warranted (as opposed to unilaterally changing theorder).

The case was adjourned to ensure compliance with the order. Court staff were directed to have any motion to change issued by themother returnable on the return date of the enforcement motion. Costs of the motion were reserved. [8] The mother issued her motion to change the existing order on September 14, 2017. She sought an order that the child liveprimarily with her. [9] At a case conference held on September 20, 2017, a referral was made to the Office of the Children’s Lawyer. [10] The Office of the Children’s Lawyer appointed counsel for the child.

The child’s views and preferences were to make nochanges to the existing order. [11] The court finds that the father was the successful party in this case. He was successful in enforcing the existing order and theexisting order was not changed, as requested by the mother. [12] The mother did not rebut the presumption that the father is entitled to costs. [13] In making this decision, the court considered the factors set out in subrule 24 (11), which reads as follows: 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. [14] The case was important for the parties. It was not complex or difficult. [15] Both parties acted reasonably in the case. [16] The court accepts the mother’s submission that she acted out of concern for her son. She agreed to the withdrawal of her motionto change after learning that her son wanted no change to the parenting plan. She also complied with the existing order, once directed todo so on July 7, 2017. [17] Both parties attempted to resolve the case by making offers to settle on February 9, 2018.

They agreed that the motion to changeshould be dismissed and that the existing order should continue to be operative, but they disagreed on the costs issue. The father’s offerrequired the mother to pay $2,500 in satisfaction of his costs.

The mother offered to pay the father $500, with the provision that if it wasnot accepted by certain dates, the father would be required to pay her costs on an increasing basis. [18] The offers to settle were made very late in the case. [19] The father’s offer to settle was more reasonable than the mother’s. [20] The father was represented by a staff lawyer and law students from Downtown Legal Services. This is a Legal Aid clinic. Most ofthe legal work at the clinic is done by the law students, supervised by the staff lawyer.

The father submitted that Downtown LegalServices does not docket their time or bill their clients. [21] The case law is well settled that the receipt of legal aid is not a factor in determining costs. See: Ramcharitar v. Ramcharitar(2002), (ON SC), 62 O.R. (3d) 107 (S.C.J.) at para. 25, and Alvarez v. Smith, (ON SC), [2008]

O.J. No. 941 at para. 17- 19. [22] The hourly rate claimed by the supervising lawyer for the father ($360 per hour) is reasonable. The hourly rate claimed for thelaw students who worked on the file for the father ($39.60 per hour) is also reasonable and consistent with the rate allowed in Ganie v.Ganie, 2015 ONSC 2991. [23] In Aucoin v Langdon, 2016 ONCJ 755, I wrote that if Downtown Legal Services wishes to maximize costs claims made on behalfof its clients, it is incumbent on it to keep accurate docketing records, including:

a) The service provided for the client.

b) The time spent on the service provided.

c) Who provided the service, and whether the person is a lawyer or a law student.

d) The hourly rate claimed for the person providing the service. [24] Downtown Legal Services did much better with this costs submission. The bill of costs sets out the work performed on the file,whether a lawyer or law student provided the service and hourly rates. The bill of costs still only set out global periods of time for thework done, without a breakdown of the billing.

This makes it somewhat difficult for the mother and the court to assess whether the timespent is reasonable. [25] The time claimed in the father’s bill of costs for preparing for and attending at the enforcement motion in the bill of costs appearsto be proportionate. [26] The father claimed time for preparation and attendance at the case conference held on September 20, 2017. Costs were notordered or reserved for this appearance, so this time claimed will not be allowed. Subrule 24(10) sets out that costs are to be determinedin a

summary manner after each step in the case by the presiding judge. A “step” in the case is one of the discrete stages recognized bythe rules such as a case conference, settlement conference and the like. See: Husein v. Chatoor, 2005 ONCJ 487 , [2005] O.J.No. 5715 (OCJ). The trial judge should not deal with requests for costs that were addressed or should have been addressed at these priorsteps in the case. See: Islam v.

Rahman, 2007 ONCA 622. [27] The balance of the time claimed in the father’s bill of costs for dealing with the mother’s motion to change also appears to beproportionate. [28] The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario , (ONCA), [2004] O.J. No. 2634 (Ont. C.A.), and Delellis v Delellis and Delellis, (ON SC), [2005] O.J. No. 4345.

Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize thetraditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and theoutcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [29] The court considered the mother’s ability to pay the costs order. See: MacDonald v. Magel (2003), (ONCA), 67 O.R. (3d) 181 (Ont. C.A.). The mother earns about $32,000 per annum. She said that she incurred thousands of dollars in legalfees for two lawyers she retained on the case. However, litigants are responsible for the positions that they take. See: Heuss v.

Surkos,2004 ONCJ 141. While ability to pay costs is a factor to consider, it does not insulate the mother from costs liability. See: Snih v. Snih, (SCJ). The court will address the mother’s difficulty in paying costs by permitting her to pay the costs order over 2years. [30] Taking into account all of these considerations, an order shall go as follows:

a) The mother shall pay the father’s costs fixed in the amount of $3,000 inclusive of fees and disbursements.

b) The mother may pay these costs at the rate of $125 per month, starting on March 1, 2018. [31] The court commends the mother and Ms. Karys on the quality of their costs submissions.

Released: February 16, 2018 Justice S.B. Sherr