Hards v. Hards, 2012 ONCJ 755

COURT FILE No.: FO138-11 Citation: Hards v. Hards, 2012 ONCJ 755 ONTARIO COURT OF JUSTICE BETWEEN: JUDD ANDREW HARDSApplicant — AND — AMANDA LOUISE HARDSRespondent Before Justice Lawrence J. Klein Endorsement released on December 6, 2012 Paul Trenker .......................................................................................................... for the Applicant Joe Sinicrope ...................................................................................................... for the Respondent Klein, J.: [1] On June 14, 2012, Justice L. Duchesneau Ferris of this court issued a final order by way of

summary judgment on theremaining issues of custody and access. That order substantially incorporated recommendations which were contained in a

section 112assessment report. The issue of costs was adjourned to July 5, 2012 with Respondent’s counsel to prepare and serve a copy of a Bill ofCosts upon the Applicant. [2] On July 5, 2012, this matter was further adjourned to August 9, 2012 to permit Respondent’s counsel to bring a motionto settle the issue of costs.

On the return of that motion it was further adjourned to August 16, 2012 to allow Applicant to retain counseland to set a date for the hearing of the costs motion. [3] Both parties appeared by counsel on August 16, 2012 and August 23, 2012 was set for the hearing of arguments on thecosts issue before me. [4] Respondent’s counsel produced a 10 page Bill of Costs dating from April 27, 2011 to August 1, 2012 which totalled$15,981.35 inclusive of disbursements and HST.

In argument Respondent’s counsel urged that I award costs of $5,000 plusdisbursements and HST totalling $6,001.74 based on the Respondent obtaining a final order on the issues of custody and access that wasin substantial accord with the recommendations of the

section 112 assessment. It was alleged that the Applicant had unduly delayedmatters from the making of the final order for support on December 22, 2011 until the final order on custody and access made June 14,2012. [5] No costs were awarded on the final order re support made December 22, 2011 and the Applicant argued that I shouldnot go back beyond that order when fixing costs.

Further, counsel for the Applicant urged that I recognize the Applicant’s position thatthe draft Minutes of Settlement that had been prepared by Respondent’s counsel were not sufficient to allow settlement of the custodyand access issues as per recommendations of the assessors. Any discussions/negotiations that took place from December 22, 2011 to thebringing of the

summary judgment motion on June 14, 2012 should not be considered in the costs award. The only award of costs shouldrelate to the preparation and argument of the motion for

summary judgment which proceeded in the absence of the Applicant on June 14,2012 and with his reported consent to a final order being made in accordance with that motion. [6] Costs in the submission of the Applicant’s counsel should be awarded in the $500 range plus disbursements and HSTgiven that the Applicant had not opposed the motion.

It is true that he did refuse to sign the Minutes of Settlement that were presented tohim thus necessitating the bringing of the motion. [7] The Respondent’s counsel’s rate of $300 per hour is reasonable for a lawyer of his skill and experience. [8] The submitted bill of costs includes all time docketed since this case began in April 2011. Much of the time was spentin preparation for and attendances at various court dates. Sub-rule 24(10) sets out that costs are to be determined in a

summary mannerafter each step in the case by the presiding judge. A “step” in the case is one of the discrete stages recognized by the rules. The Court of Appeal in the case of Islam v Rahman (2006), 2007 ONCA 622 , 41 R.F.L. (6th) 10 was clear in stating that the trial judge (ormotions judge in our case) should not deal with requests for costs that were addressed or should have been addressed at prior steps in the

case. On that basis and essentially with the concurrence of counsel, I am limiting my analysis as to what should be considered in costsfrom the period following the final order for support made December 22, 2011. [9] In

summary, this would include time spent from January 9, 2012 (at the top of page 7 of the bill of costs) to August 1,2012 plus disbursements and HST. The total docketed time within that time period was 14.8 hours. Of that time, 3.5 hours has beenclearly identified as having been performed by support staff. That work should be assumed within counsel’s hourly rate as it representspart of the overhead associated with the operation of a legal practice and is presumably used to fix the hourly rate of counsel.

I wouldtherefore deduct those 3.5 hours and reduce the bill of costs to 11.3 hours. [10] It is always difficult to determine how much time to allow for time spent on a case that can be attributed to both a prior“step” in the case and the motions for

summary judgment and costs. Competent counsel begins preparing for these motions the minutethat the file is opened and thus preparation is an on-going endeavour. Letters and e-mails are sent to both the client and the oppositeside. Given the time that necessarily elapses, there is also some duplications involved in reviewing the file and up-dating both counseland the client.

This has been referred to as “hybrid” time by the courts and it is difficult for the judge to know whether all or part of thistime should form part of the costs award. [11] In my review of the Respondent’s bill of costs, I find that 4.9 hours billed fall within this hybrid category. I will allow 2.3hours of this time for the purpose of the motion. This reduces the bill of costs to 8.7 hours. [12] The Respondent claimed disbursements of $226.80 for photocopying, postage, facsimiles and tabs. These disbursementswere not itemized as to when they were incurred.

I will allow 33% of these disbursements and attribute the balance to prior steps. [13] I am also required to consider any other relevant matter. This would include the Applicant’s financial circumstances. From the material before me and that which supported the earlier final orders, I can conclude that the Applicant has the ability to paycosts. [14] The itemized bill of costs with counsel’ s billable hours provides a framework in awarding costs.

However, as the Courtof Appeal has reminded us in Boucher et al v Public Accountants Council for the Province of Ontario, (2004), (ONCA), 71 O.R. (3d) 291 the court must step back and exercise judgment, having regard to all the circumstances as to what a fair andreasonable amount should be paid by the unsuccessful party rather than an exact measure of the actual costs to the successful litigant. [15] A full-recovery award, based on the time allowed above, would come to $3,033.87. This is comprised of the 8.7 hours at$300 per hour, the disbursements of $74.85 and HST of $349.02.

In the final analysis, this case should have been resolved in the earlypart of this year and should not have required a motion for

summary judgment. The Applicant undoubtedly had concern regarding theterms of a final order for custody and access but he lost sight of the discussions that had occurred with the assessor which led to a seriesof recommendations that had essentially been crafted by the parties. In many instances those amounted to a difference that was notworth the fight or the costs thereof. On the other hand, the Respondent insisted that a “deal was a deal” and did not wish to budge onthat which had been agreed upon with the help of the assessor. [16] On that basis, full recovery is not reasonable or fair under the circumstances.

The Respondent will be awarded partialrecovery costs in this matter. A fair and reasonable award of costs would be for the Applicant to pay to the Respondent for costs the sumof $2,400 inclusive of fees disbursements and HST. [17] My order is as follows:

a) The Applicant is to pay the Respondent her costs of these motions fixed in the sum of $2,400.

b) The Applicant may repay this order at the rate of $200 per month on the 1st day of each and every month commencing on January1, 2013.

c) In the event that the Applicant is more than 15 days in default of any payment the entire balance shall become immediately dueand payable. [18] Costs are payable as support and may be enforced as an incident of support by the Director, Family Responsibility Office. Released: December 6, 2012 Signed: “Justice Lawrence J. Klein”