Court File and Parties
Ontario Court of Justice
Between:
J.B. Applicant
— And —
R.H. Respondent
Counsel: Shannon Crawford ............................................................ counsel for the applicant mother R.H. respondent father ……………………………………………………on his own behalf
Costs Endorsement
In Chambers
Background
1On March 8, 2018, this Court released its decision dismissing the respondent father's application to change the September 3, 2013 final order of Justice Deluzio. The final order provides that the applicant mother has custody of their child, now age six. The order was silent as to access. A separate order was made that the respondent father be restrained from communicating with or contacting the applicant mother, or the child.
2The father's application requested alternate weekend access to the child with a schedule of reintegration.
3The mother is the successful party and pursuant to Family Law Rule 24(1), there is a presumption that she is entitled to costs.
4After releasing my decision, I indicated that short written submissions on costs could be made by the parties. The applicant mother provided her submissions on March 28, 2018. The respondent father provided no submissions.
Prior Costs Order
5On July 28, 2017, I made an order that the respondent father pay costs of $1,200.00 for non-compliance of an order to file a financial statement. Hearing dates did not proceed because he was not prepared and his "risk" assessment that was not filed with the court. He paid these costs as ordered.
Representation
6Although the respondent father had been represented by counsel earlier in the proceedings, he represented himself at the hearing. The applicant mother was represented by counsel throughout the matter.
Scope of Costs Requested
7The applicant mother requests costs of the motion to obtain police occurrence reports, preparation for and attending conferences, preparing for and attending the focused hearing and preparing the submissions on costs.
8She requests costs for the conferences and motion held before Justice Deluzio that occurred prior to this Court's costs order of July 28, 2017. In review of the motion for police records dated November 23, 2016, costs were not requested. Further costs were also not reserved.
9The applicant mother also asks for costs for a settlement conference held before Justice Deluzio on October 11, 2017.
10Pursuant to Family Law Rule 24(10)(a), costs are to be determined at each stage or pursuant to subsection (b), reserved. As costs were not addressed or reserved, I cannot order costs for these conferences or motion.
11At the trial management conferences held on November 15, 2017, December 8, 2017, and January 9, 2018, I reserved on the issue of costs. Further, I reserved costs at the hearing dates of February 21 and February 26, 2018.
Disbursements for Police Reports
12The applicant mother also asks for expenses or disbursements for the cost of obtaining the police occurrence reports from the respective police forces or services.
13The respondent father did not provide a complete Form 35.1 as to his criminal record. He also indicated to his assessor that he had no police involvement after March 2016, when, there was police involvement and numerous police occurrence reports, most of them due to conflict with a former partner. Further, the case management judge had recommended to the respondent mother's counsel to bring a WAGG motion to obtain the reports.
14The cost to obtain the reports from the Kingston Police was $881.40, from the Ottawa Police, $234.00 and from the Gatineau Police, $189.00 for a total of $1304.40. Because costs were not requested or reserved at the motion, I cannot order legal costs but I can order payment of expenses pursuant to subsection 24(12). The reports were filed as evidence, cross examined on, and reviewed by me during the hearing.
Legal Principles on Costs
15The Court must consider that costs are designed to foster three fundamental purposes: 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 award should reflect what the Court views as a fair and reasonable amount that should be paid by the unsuccessful party. Serra v. Serra, 2009 ONCA 395
16In this case there is no evidence of any offers to settle made by the applicant or by the respondent.
Factors Under Family Law Rule 24(11)
17In settling the amount of costs the Court shall consider Rule 24(11) factors which include:
(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) the expenses properly paid or payable; and
(f) any other relevant matter.
18The issues were important to both parties and also somewhat complex and difficult as set out in my decision.
Behaviour of the Parties
19The mother also seeks costs for her re-victimization by the respondent, but provides no authority for the request. Bad faith can cause the Court to order costs on a full recovery basis pursuant to Rule 24(8) but there is no authority for separate costs for "victimization". The Court cannot order damages in a costs decision.
20I find that the respondent father's behaviour in this case did not rise to the level of bad faith. The mother states that the music video he posted on YouTube, including images and lyrics of her and the child re-victimized her. The mother had the ability to bring a motion to the Court to have that video removed from YouTube well in advance of the trial, but did not do so. If the father had been ordered to remove the video and did not, that may have impacted on the amount of costs to be ordered.
21The respondent father clearly loves his son and believed that he was entitled to access based on the child's best interests. I find that his application was not unreasonable although it failed as set out in my decision. The respondent father now knows what is required before another motion to change is brought before the Court.
Costs Award
22Although the mother's counsel did not file a bill of costs, I find the request for costs for preparation and attendance at the trial management conferences and the hearing to be fair and reasonable. These include: three trial management conferences at $250.00 per conference and $500.00 for each day of hearing together with $250.00 for preparation of submissions on costs. There will be a costs order in the amount of $2,000.00, together with disbursements or expenses for the police occurrence reports in the amount of $1,304.40.
23Costs for attendances before other judges was also requested, but should have been requested at that stage. I cannot order costs now for those attendances.
Ability to Pay
24The respondent is employed earning $22,288.00 per year. He has no debt and has offered to pay support for the child. I find that he has the ability to pay the costs if given time to do so.
Order
1The respondent father shall pay to the applicant mother costs of $2,000.00 and disbursements in the amount of $1,304.40 for a total of $3,304.40. Costs to be paid within 120 days.
2Counsel may provide the Respondent father with a written direction as to how the costs are to be paid.
Released April 23, 2018
Justice W. Malcolm