Imineo v. Price, 2012 ONCJ 55

COURT FILE NO.: F412/08 DATE: 2012-02-03 Citation: Imineo v. Price , 2012 ONCJ 55 ONTARIO COURT OF JUSTICE RE: FRANCESCO IMINEO – Applicant and SANDRA PERSAUD PRICE – Respondent DAVID PRICE - Respondent BEFORE: JUSTICE R.

ZISMAN COUNSEL: self represented - the Applicant self represented - the Respondents HEARD ON: Written submissions and appearance on February 2, 2012 C O S T S E N D O R S E M E N T INTRODUCTION [ 1 ] On September 21, 2011 I released a judgement in this matter, granting the Respondents custody of Sara Sunita Persaud Price, born July 15, 2000 with specified access to the Applicant which included a mechanism for the child to be told that the Applicant was her biological father.

Further supplementary reasons were released on October 28, 2011 dealing with counseling and access. [ 2 ] As the Applicant was successful on the trial, he was presumed to be entitled to costs and was provided with a timetable to file his submissions for costs and the respondents were provided an opportunity to respond. Further, the case management judge had reserved the costs of an assessment conducted by Dr.

Morris and the costs of the temporary motion for access by the Applicant to the end of the trial. [ 3 ] The Applicant filed a Bill of Costs on October 12, 2011 seeking $64,227.99 on a substantial indemnity basis. These costs comprised of a claim of $27,000.00 for the trial, being charged at a rate of $300.00 per hour for 90 hours for him and for disbursements of $37,227.99, which included the cost of the assessment, his former lawyer’s fees, witness fees and other miscellaneous expenses. He

attached the invoices from Dr. Morris for the assessment, the invoice for the cost of the paternity test and a print out of his former counsel’s billings to him. He did not file any submissions. [ 4 ] The Respondents served and filed a response to the Applicant’s Bill of Costs which unfortunately due to an administrative error did not come to the court’s attention until December 6, 2011. The Respondents attached another Bill of Costs served by the Applicant on the Respondents on September 30, 2011, but which was never filed with the court. The total amount sought appeared to be $44,824.97.

In that Bill of Costs the Applicant seeks compensation for himself at the rate of only $31.25 per hour.

There also appeared to be different amounts sought for disbursements. [ 5 ] The Respondents submit that the Applicant increased the amount he was seeking in costs as a result of the Respondents commencing an Application for the Applicant to pay child support. [ 6 ] In view of the two different Bill of Costs submitted by the Applicant and what appeared to be different disbursement costs, I requested that the Applicant advise the court as to which Bill of Costs he was relying on and also to submit copies of the invoices to substantiate his disbursement costs. [ 7 ] Although the Applicant did provide copies of his invoices, he did not provide any submissions as to which Bill of Costs he was relying on or provide the court with any submissions. [ 8 ] The Respondents then filed a Form 14B requesting to adduce further evidence about “how unreasonable” the Applicant was behaving with respect to settling the matter.

As it appeared that this issue may have been more related to the issue of settling child support, I endorsed the record that the only offers to settle that the court should be advised about should pertain to the trial and not any subsequent matter relating to the new claims before the court for child support. [ 9 ] I directed that the parties attend before me to make any further oral submissions regarding the outstanding issue of costs. [ 10 ] After hearing further oral submissions and clarifying the Applicant’s position and upon review of the written materials submitted, this is my decision.

POSITION OF THE APPLICANT [ 11 ] The Applicant submits that he was totally successful at the trial and therefore should be fully compensated for the time he spent representing himself and the costs of the witness that needed to attend trial including Dr. Morris. He further submits that even before commencing this Application, he attempted through counsel to resolve the matter. He submits that the Respondent, Ms. Price put him to the unnecessary expense of a paternity test. He submits that once paternity was established, Ms. Price was prepared to resolve the case. But when Mr.

Price was added as a Respondent the proceedings became extremely litigious and he was put to the further the expense of an assessment. [ 12 ] At the trial, the Applicant sought an order in terms of the recommendations of Dr. Morris. In the result, he was substantially successful at trial. It is his position that a trial was not necessary and that the Respondents’ behaved unreasonably in not accepting Dr. Morris’ recommendations. [ 13 ] By way of clarification, the Applicant advised that he was relying on the Bill of Costs seeking total costs of $44,824.97.

POSITION OF THE RESPONDENTS [ 14 ] It is the Respondents’ position that the Applicant was seeking custody and access to Sara and in the judgement he was only granted access. [ 15 ] It is their position that “custody is worth overwhelmingly MORE than access is, and by the principle of divided success ( Family Law Rules 24 (6), the Applicant IF awarded costs, should only get a greatly diminished award commensurate with the relative weighting of the “value” of access vs. custody.” [ 16 ] The Respondents submit that if costs are granted that it should not be awarded in the amount requested by the Applicant and raised concerns about some double counting. [ 17 ] After the assessment, counsel for the Applicant brought a temporary motion for an order in terms of the recommendations of Dr.

Morris. Justice Wolder who as the case management judge heard the motion, held that the relief sought was the very issue to be determined at trial and therefore did not grant the Applicant the relief sought, being the implementation of Dr. Morris’ recommendations but reserved costs. [ 18 ] Although the Respondent did not request costs of the temporary motion before Justice Wolder I have also considered if they should, as the successful parties on that motion, be entitled to costs.

GENERAL PRINCIPLES [ 19 ] There were no offers to settle this trial, therefore I must consider the general principles applicable to costs. [ 20 ] Rule 24 of the Family Law Rules, O. Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out the

basic assumption that a successful party is entitled to costs. [21] Rule 24 (11) provides a further list of factors a court should consider in dealing with 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 behavior in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documents andcorrespondence, 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. [22] In Serra v. Serra 2009 ONCA 395 , [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costsrules are designed to foster three important principles: 1. to partially indemnify successful litigants for the cost of litigation; 2. to encourage settlement; and 3. to discourage and sanction inappropriate behavior by litigants. [23] The court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointedout in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004 CarswellOnt 2521, [2004] O.J.

No. 2634, theaward of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings. [24] In this case I have considered the legal principles and factors as set out in subrule 24 (1) and (11). In determining the Applicant’sentitlement to costs and if so, the amount of such costs I consider the following factors to be applicable. Success [25] The Applicant was the successful party. Contrary to the Respondents’ submissions, it is not the relief requested by the Applicantin his Application that is relevant it is his position at trial.

After receiving the benefit of the assessment of Dr. Morris, the Applicant didnot pursue the issue of joint or shared custody rather he sought an order in terms of Dr. Morris’ recommendations. He achieved thisresult at trial. [26] Justice Wolder, in refusing to grant the Applicant a temporary order in terms of Dr. Morris’s report, reserved the issue of costsincluding who should pay the costs of the assessment report.

His endorsement states that success on the motion, which would triggerentitlement to costs, needed to be decided in the context of the success of the parties at trial after the trial judge had the opportunity toconsider all of the relevant evidence including any expert evidence tendered by the Respondents. The Respondents did not provide anyexpert evidence at the trial. [27] In the result, the Respondents’ were not successful at trial and I would therefore not award them costs of the temporary motion.

Importance, Complexity and Difficulty of the issues [28] The issues were extremely important and difficult for all of the parties. All of the parties clearly spent a considerable amount oftime and effort in trying to conduct this trial without the benefit of counsel. Reasonableness or unreasonableness of each party’s behaviour [29] The Applicant acted reasonably throughout the proceeding. In light of Dr. Morris’ assessment, he realistically assessed the reliefhe was requesting and adjusted it accordingly. [30] I cannot and do not fault the Respondents for not simply agreeing to Dr. Morris’ recommendations.

They sincerely believedtheir position was in the best interests of their daughter. All parties conducted themselves appropriately throughout the trial despite thehighly emotional nature of the issues. [31] Although the Respondents did not initially agree with the recommendations of Dr. Morris once the trial decision was rendered,they complied immediately and acted in Sara’s best interests. They are to be commended for their actions in what must have been themost difficult thing they have ever had to tell her.

Lawyer’s rates [ 32 ] The Applicant was represented when he commenced his Application and in the motion before Justice Wolder. His counsel has 37 years of experience and an hourly rate of $300.00 is reasonable. Time properly spent on the case [ 33 ] I have reviewed the docket submitted by the Applicant from his former counsel. It is detailed with respect to the time spent on the various steps in the proceeding. Some of the docket relates to prior steps in the proceeding such as attendances at the case conference or settlement conference.

Subrule 24 (10) provides that the judge who deals with each step in a case shall decide who, if anyone, is entitled to costs. Therefore, the Applicant is not entitled to claim any costs for any attendances. [ 34 ] However, he is entitled to claim his counsel’s fees for preparation and steps as not associated with any step in the proceeding or any court attendances such as preparation of the originating documents and correspondence, meeting with counsel and attempts to negotiate settlement.

I have estimated those fees to be approximately $4,950.00. [ 35 ] I also note that the Applicant consulted with his counsel with respect to preparation of the trial record and summons and general information on how to conduct the trial. It would also be appropriate for the Applicant to claim these costs which are $270.00. Expenses properly paid [ 36 ] The Applicant claims expenses for the paternity test of $ 655.40. The Respondent, Ms. Price insisted on the paternity test.

I found at trial that she must have been aware that the Applicant was the child’s biological father and therefore I find that the Applicant should be reimbursed for this expense. [ 37 ] The Applicant is seeking reimbursement for the expense of his share of the cost of the assessment of Dr. Morris of $ 8,887.50 and $3,850.00 for the cost of Dr. Morris preparing for and attending trial. [ 38 ] I agree that the Applicant should be entitled to be reimbursed for his share of Dr. Morris’ assessment. Even before commencing these court proceedings, his counsel corresponded with Ms.

Price and attempted to negotiate an access arrangement that would not be intrusive. But Ms. Price refused to discuss any parenting plan. Even after he commenced the Application, it was clear that he was prepared to negotiate access, that he just wished to have a role in Sara’s and that he would not be pursuing joint or shared custody. I agree with the Applicant that if the Respondents had agreed to discuss a parenting plan with him, the assessment with Dr. Morris would not have been necessary. [ 39 ] The Applicant should also be reimbursed for the cost of Dr. Morris preparing and attending the trial.

Although the Respondents had the right to proceed to trial, the Applicant would have been spared this expense if they had accepted the recommendations of the assessment report without the necessity of a trial. [ 40 ] The other expenses claimed by the Applicant such as the cost of process servers, cost of summons to witnesses, photocopying expenses and supplies are proper expenses. These total $580.00. Any other relevant matter [ 41 ] The Applicant also seeks to be reimbursed for the time he took off work to prepare and attend the trial.

He submits that he spent 66 hours to prepare and copy the Trial Record, summons and other trial documents, to prepare for and attend trial. He claims an hourly rate of $30.00 for a total of $1,980.00. [ 42 ] In the case of Fong. V. Chan [199] O.J. No. 4600, the Ontario Court of Appeal considered the recovery of costs by a self- represented litigant who was a lawyer. However, the court also considered the issue of recovery of costs by self-represented litigants generally. Mr.

Justice Sharpe speaking for the court stated as follows: 26 A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences.

Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant. 27 I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v.

Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigant's conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.

28 I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra , recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a "moderate" or "reasonable" allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event.

The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed. [ 43 ] The issue of appropriate compensation for a self-represented litigant was also considered in Korhani v. Bank of Montreal , [2002] O.J. No. 4785 (Ont. Sup. Crt. Jus.) Lane, J. applied Fong v. Chan, supra , in a case where a self-represented litigant was an added third party in an action.

As there was no evidence that the third party had foregone remunerative opportunity, she was not entitled to compensation for time spent preparing her case. However, Lane J. held that it was a corollary of Fong v. Chan that unrepresented parties should be treated generously with respect to expenses relating to the trial, and should not be strictly confined at the type of expenses which a lawyer would be allowed to claim.

He allowed the litigant costs for filing fee, lawyer consultation fee, certain travel cost, parking, babysitting, photocopying, some courier charges, and the cost of ordering transcripts. [ 44 ] Accordingly, it is clear that there is no impediment to awarding costs to a self-represented litigant. In this case, the respondent took days off work to prepare for the trial and therefore lost wages. [ 45 ] I have also considered that the Applicant would have had to attend court in any event for the 4 day trial if he was represented; but this trial could have been avoided. The assessment of Dr.

Morris was extremely thorough and well reasoned and without any other expert opinion to counter his opinion that Sara needed to be told about her parentage, it is difficult to understand on what basis the Respondents thought they could have succeeded. [ 46 ] Further, Dr. Morris’ evidence was heard on May 2, 2011 as he was not available for the trial dates on July 25, 26 and 27, 2011. The Respondents could have reassessed the likelihood of success after hearing his evidence and after their cross-examination of him. It should have been obvious to the Respondent that they had been unsuccessful in challenging Dr.

Morris’ assessment recommendations. The Respondents were aware that Dr. Morris’ evidence was pivotal to the trial. [ 47 ] In these circumstances, as the unsuccessful parties the Respondents should compensate the Applicant for some of his lost wages as a result of the trial. I have already held that his other out of pocket expenses should be reimbursed. [ 48 ] Therefore, I consider that a fair and reasonable order for legal costs on partial indemnity basis is $5,000.00 plus an additional $1,500.00 to compensate the Applicant for his lost wages as a result of preparing for and attending court.

I also order the Applicant to be compensated for his disbursements, including the cost of the assessment in the amount of $13,392.90. [ 49 ] The Respondents made no submissions as to their financial circumstances or that they were unable to pay an order for costs. ORDER [ 50 ] The Respondents, Sandra Persaud Price and David Price are ordered to pay the Applicant, Francesco Imineo, $18,392.90 inclusive of all disbursements and applicable taxes within 30 days. ___________________________ Justice R. Zisman DATE: 3 February 2012