Court File and Parties

Ontario Court of Justice

Date: 2014-08-12

Court File No.: Goderich 10 48

Between:

Alysha Leigh-Ann Mahon Applicant

— And —

Daniel Karypyshyn Respondent

Before: Justice Brophy

Written Submissions

Reasons for Costs Ruling released on: 12 August 2014

Counsel:

• Mary E. Cull, counsel for the applicant
• James C. McIlhargey, counsel for the respondent

BROPHY J.:

Background

[1] The applicant seeks her costs in this proceeding as it relates to the dispute over access in the amount of $10,000.00. The respondent opposes that request.

[2] This action began in July 2010. The applicant sought custody of the child Nathan Patrick Moore, born March 29, 2010, child support, a restraining order, and an order that there be no access between the respondent and the child. The applicant is the mother of the child Nathan and the respondent is the father.

[3] In his answer the respondent claimed access to the child. The respondent had a history of sexual offending against a different child and as a result the applicant would not agree to access.

[4] On November 2, 2010 a final custody order was made on consent in favor of the applicant and an interim child support order was also made. On April 15, 2011 child support was resolved on a final basis. The restraining order request was not pursued.

[5] The parties agree that no costs should accrue with reference to the issues other than the access dispute.

[6] Throughout 2011, 2012 and 2013 the parties attended court on numerous occasions awaiting a risk assessment related to the respondent and after that a plan to be presented by the respondent with reference to supervised access. It should be noted that in January 2011 a risk assessment was delivered but was not satisfactory from the applicant's perspective, although it did recommend that the respondent participate in counselling. It is also noted that the report supported supervised access. Subsequent to that there was at least one occasion when an access supervisor was proposed by the respondent in March 2013. That supervisor was accepted by the applicant but the supervisor withdrew because of a conflict with her other obligations as a foster parent. This was because she did not know about the past history of the respondent and when she was informed of that she decided that she did not wish to involve herself because of the possible implications for her ability to work with the Children's Aid Society.

[7] The matter devolved into a stasis whereby the applicant maintained that there should be no access but in the alternative access should be supervised by a person that she approved, and the respondent sought unsupervised access or in the alternative supervised access as might be agreed upon. There was a trial management conference in January of 2014 where those positions were maintained by the parties, although the respondent did propose that there be supervised access with his girlfriend as the supervisor. The applicant objected to same because the girlfriend had a significant history of child protection concerns and one of her children had been permanently removed from her care.

[8] Subsequently the matter was set down for trial in the sittings commencing May 6, 2014. The applicant brought a motion for summary judgment returnable at the start of the trial proceedings. The parties then resolved the matter on the basis that supervised access would be allowed with the supervisor to be approved by the applicant.

[9] The applicant's position is that the requirement for supervised access at her discretion and as approved by her was her position for most of the proceedings and was ultimately satisfied by way of the settlement. The respondent's position is that the applicant had maintained an official position of no access and ultimately agreed to supervised access. He views that as a success.

Principles

[10] Costs are provided for in Rule 24 of the Family Law Rules. The relevant provisions are as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs. O. Reg. 114/99, r. 24 (4).

(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. O. Reg. 114/99, r. 24 (5).

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).

(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. O. Reg. 114/99, r. 24 (11).

[11] The Ontario Court of Appeal held in Serra v. Serra, 2009 ONCA 395, that modern cost rules are designed to foster three fundamental purposes:

(a) to partially indemnify successful litigants for the cost of litigation,

(b) to encourage settlement, and

(c) to discourage and sanction inappropriate behavior 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.

[12] These rules and principles inform any consideration of costs.

Discussion

[13] The bill of costs for the applicant totals $11,171.46. The respondent's bill of costs set out legal expenses of $6,497.44. Both counsel are experienced and have a high degree of expertise. Their hourly rates are appropriate.

[14] The applicant argues that she was successful and the major delay in the proceedings was the inability of the respondent to present an acceptable supervisor. The respondent continually indicated that he would provide an access plan with an appropriate supervisor but was unable to do so on many occasions. The argument of the applicant is that there was no merit in having the litigation continue or go to trial if a suitable supervisor was not available. The argument is that the respondent's behavior was therefore irresponsible and escalated the costs.

[15] The respondent argues that at best the result was a mixed result and that by obtaining an order providing for supervised access he achieved the basic result that he hoped for and to achieve that result it was reasonable for him to continue with the action. It is therefore submitted that because there was divided success it is not appropriate to award costs to the applicant.

[16] The respondent also notes that Rule 24(10) indicates that costs are to be decided at each step and that with respect to the various attendances and endorsements in this matter over a long period of time there is no indication, with only a few exceptions, that costs are reserved. In any event, the respondent says, many of the adjournments were of a nature where costs are not ordinarily requested or ordered for that particular step. The argument then is that it is inappropriate to seek full indemnity on costs at the conclusion of the matter in circumstances where that would not be in keeping with Rule 24(10).

Decision

[17] In my view the applicant was moderately successful in that in the end she controls the access plan and is in a position to approve or disapprove of any suggested supervisor. In that broad sense she was successful.

[18] It is also noted that the respondent over at least a year and a half maintained that he could find a supervisor and on the one occasion when he was able to come up with a third-party supervisor, that is to say not his girlfriend, that person was not able to continue when the history of the case was explained to her. This lack of candor on the part of the respondent goes against his position.

[19] At the end of the litigation it was only by having the matter set down for trial and then being confronted with a motion for summary judgment that the parties finally were able to agree that access would be supervised and in the discretion of the applicant. This is a victory for the applicant in my view.

[20] I note the argument that the applicant continued to formally take the position that there should be no access, but it is clear that for at least a year and a half she had agreed that supervised access could take place and indeed had actually approved one supervisor, who unfortunately had to withdraw. So although the formal position might have been no access the applicant clearly was prepared to agree for some time to a supervised access regime if only an appropriate plan could be presented.

[21] In assessing the matter I am of the view that the applicant is presumptively entitled to her costs based upon the success I have described.

[22] However there are a number of qualifiers. The first is that the bill of costs from the applicant seems to contain some elements of the issues related to custody and support.

[23] Second, there is the issue about cost being awarded at each step of the proceeding. Often times counsel do not address the costs issue because they are fearful of being sidetracked into an argument over a relatively minor question on that particular day. And it is also noted that administrative matters do not generally attract a requirement for costs to be specifically dealt with on any specific day. Nevertheless it is important to have some statement with reference to cost being reserved. There is some weight to this argument and in my view the costs order should be reflective of that concern.

[24] I also have to concern myself with the ability to pay coupled with the request for full indemnity. In my understanding of the file the respondent has a modest income. The cost order has to take that into consideration.

[25] Finally it is clear that the case was important in terms of the well-being of the child, but it was not particularly complex or difficult in terms of analysis.

[26] After a review of these considerations in my view it is appropriate to discount the bill of costs by 25%.

[27] I do not think full indemnity is appropriate to the case. This is not a situation where there was bad faith exhibited on the part of the respondent. Partial indemnity is closer to the mark especially in light of the issues I have mentioned.

[28] After taking into consideration all of the above I am of the view that the respondent shall pay to the applicant her costs on a partial indemnity basis in an amount fixed at $5,000.00 inclusive of HST and disbursements payable forthwith.

Released: August 12, 2014

Signed: "Justice Brophy"