Court File and Parties

Court File No.: D56205/12 Date: 2015-05-28

Ontario Court of Justice

Between:

Francesco Macedonio Applicant

Counsel: Renata Kirszbaum, for the Applicant

- and -

Hidee Peers and Peter Peers Respondents

Counsel: David Miller, for the Respondent, Hidee Peers The Respondent, Peter Peers, not appearing and noted in default

Heard: May 27, 2015

Justice: S.B. Sherr

Costs Endorsement

1On March 12, 2015, Justice Robert Spence directed that a focused trial be held on May 27, 2015, regarding custody of the six-year-old child of the applicant (the father) and the respondent Hidee Peers (the mother).[1] Justice Spence directed that the evidence-in-chief of the parties be provided by affidavit. He placed time limits on the cross-examination of witnesses. He also provided timelines for the filing of the trial affidavits.

2The father served and filed his trial affidavits within the timelines ordered.

3The mother did not file any affidavits.

4The mother's counsel advised the father's counsel on May 21, 2015 that the mother would not oppose the father's requests for custody of the child and his ability to obtain or renew government documentation for the child, without the respondents' consent. The mother sought some restrictions to the father's request to travel with the child outside of Canada without the respondents' consent.

5The matter was spoken to on May 27, 2015. The parties agreed on the travel terms that the mother would not oppose. Final orders were made as follows:

a) Custody of the child to the father.

b) The father may obtain or renew all government documentation for the child, including passports, without the respondents' consent.

c) The father may travel with the child outside of Canada, for vacation purposes only, without the respondents' consent.

6The father then asked to proceed with the access issue on a final basis. This was opposed by the mother. The father's request was denied. Justice Spence referred only the custody issue for a focused trial. Justice Spence had made a temporary order that the mother's access to the child be supervised at the Toronto Supervised Access Centre. This access had not started yet. It was premature to deal with this issue on a final basis. The access issue was adjourned until November of 2015 for a case conference before Justice Spence.

7The father sought costs of the focused hearing against the mother. Oral submissions were made.

8The father sought costs of $3,000. He submitted that his legal fees, not including his fees for the May 27, 2015 appearance exceeded $7,000.

9The mother asked that no costs be ordered.

Legal Framework for Costs

10The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes, namely: to partially indemnify successful 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 the unsuccessful party.

11Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are to the Family Law Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe. To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.

12The father made an offer to settle. The offer was not very helpful for this determination as it included terms regarding access and property.

13The mother did not make an offer to settle.

14The father was the successful party on the issues before the court.

15The mother did not rebut the presumption that the father is entitled to costs. She should not have put the father to the cost of preparing for this hearing.

Factors in Determining Costs

16In 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.

17The case was important for the parties. It was not complex or difficult.

18The father's behaviour was reasonable. The mother was not reasonable in requiring the father to prepare for this focused trial.

19The rates and time claimed by the father were reasonable and proportionate.

20The court considered both Boucher et al. v. Public Accountants Council for the Province of Ontario and Delellis v. Delellis and Delellis. Both these 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 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.

Ability to Pay and Respondent's Circumstances

21The court considered the mother's ability to pay costs. See: MacDonald v. Magel. The mother has limited means. She receives monthly disability payments from the Ontario Disability Support Plan. However, a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune. See: Snih v. Snih.

22The court considered the submissions of the mother's counsel that the mother has cognitive and mental health issues that impair her judgment – this is why her access is supervised. However, this does not give her carte blanche to take unreasonable positions and increase the father's costs.

23This order will give the mother the opportunity to make affordable payments towards the costs that will be ordered. However, this opportunity will be conditional upon her making all of the payments in a timely manner.

Costs Order

24Taking into account all of these considerations an order shall go that the mother shall pay the father's costs fixed in the sum of $2,400, inclusive of fees, disbursements and HST. She may repay these costs at the rate of $50 per month, starting on July 1, 2015. However, if she is more than 30 days late in making any of the monthly payments, the entire amount owing at that time shall become due and payable.

Justice S.B. Sherr

Released: May 28, 2015

Footnote

1The respondent, Peter Peers is the child's stepfather. He was previously noted in default and did not attend at this hearing.