Court File and Parties

Court File No.: North Bay, Ontario FO 240-12 Date: 2013-09-09 Ontario Court of Justice

Between: David Thomas Evans, Applicant

— And —

Catherine Lynn Evans, Respondent

Before: Justice L. J. Klein

Endorsement released on: September 9, 2013

Counsel: Barbara Kristanic for the Applicant Joe Sinicrope for the Respondent

Costs Endorsement

KLEIN, J.:

[1] On May 14, 2013, I released my endorsement following the argument of a motion that was heard by me during one-half day on April 19, 2013 whereby I fixed specific terms of access by the Applicant father to the children.

[2] I invited written costs submissions from the parties. The father seeks his full recovery costs of $7,500 inclusive of HST and disbursements. The mother also made written costs submissions. She argues that the father's costs claims are excessive and that, in any event, she and the children will suffer hardship should I award full recovery costs to the father.

[3] In the case of Serra v. Serra 2009 ONCA 395, the Ontario Court of Appeal 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.

[4] Rule 24(1) of the Family Law Rules (FLR) creates a presumption of costs in favour of the successful party. This consideration of success (or the lack thereof) should be the starting point in deciding costs awards. To determine whether a party has been successful, the court need look to what result was obtained in the face of what positions the respective parties took in the motion which was argued before the court. In making any decision, it is clear that I favoured the father's position over that of the mother and indicated in my endorsement that the father should have costs awarded. The only issue for me is the amount of such costs award.

[5] I considered the factors set out in R. 24(11) of the FLR which reads as follows:

Factors in Costs

(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.

[6] Although this motion was important to the parties, it was not complex. The sheer volume of material that was provided to me, is testimony to the inability of these parents to resolve matters in the best interests of their children. As I indicated in my endorsement, "the reasons advanced by the [mother] as to why access could not continue [as per the status quo] morphed as solutions were suggested." I found that she did not act reasonably nor did she take positions that were reasonable.

[7] The rates claimed by the father's lawyer ($225 per hour) are not unreasonable and neither are those of the mother's lawyer ($300 per hour).

[8] Costs are to be determined in a summary manner after each step in the case by the presiding judge (R. 24(10)). In the case a "step" is any one of the discrete stages set out by the rules. The case of Islam v. Rahman 2007 ONCA 622 states that the motions judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. That does not apply to the arguments heard by Justice Rodgers on March 7, 2013 where he reserved the issue of costs to the motions court justice on the agreed upon date for argument of the motion being April 19, 2013.

[9] The father claimed time spent for meetings with the client, reviewing and preparing pleadings communication with the mother's counsel, and for attendance at the various court dates including the date set for argument of the access issues on their merits. All of these claims are legitimate and should be considered by me.

[10] The father claimed disbursements of $754.29 inclusive of HST all of which appear to be legitimate. I took particular note of the agency account rendered for the argument on the contested adjournment heard March 7, 2013 which was at $352.75 (HST included) substantially less than the account of mother's counsel at $1,080 (HST not included). The reasonableness of that disbursement speaks for itself.

[11] I have also 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 v. Delellis and Delellis, Justice David R. Aston 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.

[12] I considered the mother's ability to pay the costs order as per MacDonald v. Magel. Although a party's limited financial circumstances should not be used as a shield against any liability for costs those circumstances can be considered when assessing the quantum of costs while also taking into account the reasonableness of that party's position under the circumstances (emphasis added). In this case I found the mother was the author of her own misfortune in that she took unreasonable positions and that her claim to have moderate income cannot be used as a shield in unnecessary litigation. Further, the household income is not insubstantial and the children will not suffer to any great extent from a costs award against their mother.

[13] Having given due consideration to the factors set out above, I can determine no reason to deviate from the presumption set out in the R. 18(14) of the FLR that the father should recover his costs.

[14] The mother had ample opportunity to resolve the issues along the torturous path that led to the hearing of the motion before me but she persisted in taking the role of a problem maker and not as a problem solver which by its very nature is unreasonable and rightfully attracts cost consequences.

[15] The father will be awarded his costs as claimed in the amount of $7,500 inclusive of disbursements and HST.

Released: September 9th, 2013

Signed: _________________

Justice L.J. Klein