Court File and Parties

Ontario Court of Justice

Date: 2014-06-03

Court File No.: Goderich 114/2007

Between:

Shelley Danielle Harris Applicant

— And —

Ryan Crawford Respondent

Before: Justice Brophy

After written submissions

Reasons for Ruling on Costs released on 3 June 2014

Counsel: Sara C. Wisking — counsel for the Applicant(s) Ryan Crawford — on his own behalf

BROPHY J.:

[1] The Applicant seeks her costs with respect to a Motion to Change brought by the Respondent. That Motion was dismissed on 16 July 2013. The Applicant was entirely successful.

[2] The parties were directed to provide submissions with respect to costs in writing.

[3] The submissions made by the Applicant were concise, pointed and detailed.

[4] The Respondent provided submissions that were for the most part not directed at the issue of costs with respect to this motion but rather were focused on re-arguing the custody and access question.

[5] It should be noted that the Respondent admitted in his written submissions that he made an audio recording of the court proceeding on 4 June 2013. This notwithstanding the clear rule against doing so without the permission of the court. This is an offence under section 136(4) of the Courts of Justice Act. Effectively it was done surreptitiously. The Ontario Court of Justice has issued a protocol regarding the use of electronic devices in court proceedings and the Respondent is well advised to familiarize himself with that protocol and follow it to the letter.

[6] 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).

[7] 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.

These principles inform any consideration of costs.

[8] In this case the Applicant was successful and is presumptively entitled to her costs.

[9] The Respondent's motion was misguided and the response of the Applicant was measured and appropriate. The Applicant did not act in an unreasonable manner. It should be noted that there were no Offers to Settle exchanged between the parties.

[10] There is no basis for apportioning costs as the Applicant was wholly successful.

[11] Although the Respondent's motion was ill conceived and badly executed, it was not initiated in bad faith. There is a high bar with respect to establishing bad faith. It often requires deceit, misleading behavior, or a conscious doing of a wrong because of a dishonest purpose or moral obliquity. It contemplates an intention to cause harm. See S.(C.) v. S.(M.), affirmed 2010 ONCA 196 and Buchanan v. Buchanan. In this case the secretive recording of the court proceedings on 4 June 2014 and the unnecessary and mean spirited statements made about the Applicant in the Respondent's cost submissions bring the actions of the Respondent perilously close to bad faith. But not quite.

[12] In considering the factors set out in Rule 24(11), I make the following observations:

(a) Importance – Complexity – Difficulty - This Motion was of great importance to the parties and given the intense emotion generated by the background of the case it had a difficult factual component, although it must be quickly added that the legal issues in and of themselves were not complex.

(b) Reasonableness – Unreasonableness - The Applicant was completely reasonable in her response. The same cannot be said for the Respondent. He did not take legal advice. If he had he would have understood that part of his request was doomed from the outset. Moreover he did not give timely notice about that part of his claim that he was abandoning until the day of argument, thus requiring the Applicant to prepare and be ready to respond.

(c) Rates - The Bill of Costs of the Applicant and the rates for legal counsel and support staff are reasonable and fair.

(d) Time Spent - After review of the docketed entries of counsel for the Applicant it is clear that the time spent on the case by counsel for the Applicant was appropriate and necessary.

(e) Expenses – The disbursements paid out by the Applicant were modest and in order.

(f) Other Relevant Matter – The Respondent has not established impecuniosity or financial hardship or any special circumstances that would suggest a reduction in costs.

[13] Taking into account the above principles and the provisions of Rule 24, in my view costs should be awarded to the Applicant on the above noted Motion to Change on a substantial indemnity basis in the amount of $4,296.89 payable forthwith.

Released: 3 June 2014

Signed: "Justice Brophy"