Court File and Parties
Court File No.: 71/11 Date: September 20, 2012
Ontario Court of Justice
Re: Ada Dinorah McCash and John McCash
Before: Justice R. Zisman
Counsel: Sofia Dharamshi, for the Applicant Respondent John McCash – self-represented
Heard: by written submissions
Costs Endorsement
Background
[1] On July 25, 2012 I released my judgement granting the applicant's motion for summary judgment on the issues of custody of the four children of the marriage, restricted and supervised access, a restraining order and imputing income to the respondent in the amount of $22,000.00. I also granted the applicant ancillary orders permitting her to obtain passports and travel without the respondent's consent. I dismissed the respondent's motion for shared/joint custody, an order that the applicant undergo a mental health assessment, support, reinstatement of the respondent on the applicant's extended medical plan, rescinding the temporary restraining order, expanded and unsupervised access and for shared profit from the rental income of the matrimonial home.
[2] Both parties were requested to serve and file written submissions for costs. The applicant's counsel served the respondent with her cost submissions and her Bill of Costs on August 15, 2012. The respondent has not filed any response.
[3] The applicant is requesting costs on a full recovery basis of $7,966.71 inclusive of applicable taxes and disbursements.
Legal Framework for Costs
[4] 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.
[5] Rule 24(11) provides a further list of factors a court should consider in dealing with costs, namely:
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 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.
[6] In Serra v. Serra, 2009 ONCA 395, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(i) to partially indemnify successful litigants for the cost of litigation;
(ii) to encourage settlement; and
(iii) to discourage and sanction inappropriate behavior by litigants.
[7] I am mindful of the comments made in Boucher v. Public Counsel (Ontario) that in fixing costs the court does not begin and end with the calculation of the hours spent times the lawyer's hourly rate but rather the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.
Application of Costs Factors
[8] In applying these principles to the facts of this case, I find that the applicant was the successful party and is therefore presumptively entitled to her costs. I have considered the factors in Rule 24(11) and make the following findings.
a) Importance, Complexity or Difficulty of the Issues
[9] The issues were important to the applicant as they primarily related to custody of the children and concerns about their safety. Although the issues were not legally complex, the case has been before the court since February 2011 and therefore has a lengthy history.
b) Reasonableness or Unreasonableness of Each Party's Behaviour in the Case
[10] The applicant has acted reasonably throughout the case. Although the respondent was unable to focus his submissions on the issues before the court on the summary judgment motion, I would not characterize his behaviour as unreasonable in his presentation on the motion before me. However, his position for joint/shared custody was unreasonable in that he had only seen the children three times since October 2011 and had refused to exercise the supervised access he had been granted in the court order of February 14, 2011.
[11] However, the respondent has throughout these proceedings consistently acted in a vexatious, manipulative and harassing fashion. The details of the respondent's behaviour was before me as part of the summary judgment motion to support the applicant's position that it would be impossible for any type of joint custody order to be workable and further to support her position for the need for a restraining order and supervised access. The full details of the respondent's behaviour are set out in my judgment on the summary judgment motion.
[12] In order to appreciate, to some extent the type of behaviour the applicant has had to endure, I will outline the most egregious example of the respondent's behaviour. After the applicant was successful in obtaining a temporary restraining order, the respondent brought a motion for custody, child and spousal support and a stay of the proceedings. Immediately after his motion was dismissed, the respondent drove to the Brampton courthouse, appeared before a justice of the peace and successfully convinced the justice of the peace to issue an order that the applicant attend for an examination pursuant to section 16 of the Mental Health Act. The respondent deliberately lied and misled the presiding justice of the peace by omitting to advise the justice of peace about the fact the parties had been separated for over a year that the children lived with the applicant and he did not disclose that the parties were in litigation in the Ontario Court of Justice in Milton. As a result, the applicant was apprehended by the police in front of the children and escorted to the hospital. The applicant was at the hospital for two hours before she was discharged with no mental health issues. While at the hospital, the respondent attended and tried to talk to the doctor examining the applicant.
[13] The respondent's behaviour has significantly increased the applicant's legal fees on the summary judgment motion as the applicant was required to provide lengthy and detailed affidavits with supporting documentation in support of the relief she was requesting.
c) Lawyer's Rates
[14] Ms. Dharamshi was called to the bar in 2009 and her hourly rate is $225.00 which I find is reasonable for counsel of her skill and experience.
d) Time Properly Spent on the Case
[15] A detailed Bill of Costs was submitted for the time spent for preparation of the affidavits filed in support of the summary judgement motion and for the preparation of the factum and book of authorities. The Bill of Costs also included time spent for meetings and interviews with the Applicant and the deponents of the supporting affidavits in preparation for the motion. The Bill of Costs did not include any time for the preparation of the initiating pleadings or the initial meetings with the Applicant which in my view could have also been properly requested. I find the amount of time spent to be extremely reasonable.
e) Expenses Properly Paid or Payable
[16] The disbursements claimed of $367.68 are reasonable and appropriate.
Conclusion and Order
[17] In considering all of these factors, in my view the applicant should receive close to full recovery of her costs. The most relevant consideration is the respondent's unreasonable behaviour and actions throughout these proceeding which increased the applicant's legal fees in finalizing this litigation.
[18] Order as follows:
The Respondent, John McCash shall pay to the Applicant, Ada Dinorah McCash costs of $7,900.00 within 30 days.
The Respondent's approval of this order as to form and content is dispensed with.
Justice R. Zisman
Date: September 20, 2012