Court File and Parties

Ontario Court of Justice

Date: 2014-02-07

Court File No.: Goderich 08 42

Between:

Melissa Marie Masse Applicant

— And —

Trevor Raymond Struth Respondent

Before: Justice Brophy

Written Submissions

Reasons for Costs released on: 7 February 2014

Counsel:

• Jenn M. McMillan – counsel for the Applicant
• David A. Reid – counsel for the Respondent

BROPHY J.:

INTRODUCTION

[1] The Applicant seeks costs against the Respondent for a failed Motion to Change dismissed on 3 September 2013.

[2] The history of the litigation is that on September 2, 2008 this court made an Order giving sole custody of the child of the parties to the Applicant with the Respondent having access at the discretion of the Applicant and subject to supervision as determined by her.

[3] On March 23, 2010 the Respondent commenced a Motion to Change seeking unsupervised access.

[4] There was an attempt to resolve this matter on August 10, 2012 in that the parties entered into interim Minutes of Settlement with an Order flowing therefrom that same date that provided for supervised access by the Respondent if he complied with conditions set out in the said Order.

[5] In fact the Respondent did not take up the access that was offered and did not make significant changes in his drug and alcohol addiction issues or his anger management and instability problems.

[6] The resolution anticipated in the Order of August 10, 2012 did not work out and after a further Settlement Conference on May 31, 2013 the matter was sent on for trial.

[7] After a trial of the issues by way of affidavit and submissions of counsel, this Court dismissed the Motion to Change, finding that there was no material change in circumstances warranting a variation of the September 2, 2008 Order.

LAW

[8] This request for costs is governed by Rule 24 of the Family Law Rules.

[9] Rule 24(1) provides that the successful party to a motion or case is presumed to be entitled to costs. Rule 24(5) provides a framework from which the court can examine whether a party has acted reasonably. Rule 24(11) provides the court with factors that must be considered when setting the amount of costs.

[10] Cost rules serve three fundamental purposes. They indemnify successful litigants from the costs of litigation, encourage settlement, and discourage and sanction inappropriate behavior.

[11] Other principles include that costs are to be assessed as if Legal Aid was not applicable and it is appropriate to consider the solicitors normal hourly rate. See R.(S.) v. R.(M.) (2002), 62 O.R. (3rd) 107, El Frky v. Tohamy (2010) ONCA 778 and Foran v. Foran, [2001] O.J. No. 430. Further a litigant's meager financial resources do not afford immunity from a costs order but will affect the scale or quantum of such an award. See M. (L.C.) v. V. (C.A.), [2003] O.J. No. 4843.

SUBMISSIONS

Applicant

[12] The Applicant submits that she achieved a successful result and that substantial indemnity costs are warranted pursuant to Rule 24 (11). While the Applicant concedes that the matter was not overly complex or difficult it was of extreme importance. The argument is that the child who is 11 years old has had limited access to the Respondent since 2006 and that the litigation protected the interests of the child and prevented a disruptive and emotionally damaging shift in access to occur.

[13] The Applicant argues that she conducted herself in a reasonable manner, including attempting to resolve the case and allowing the Respondent access to the child in a protected setting. It is pointed out that the Respondent did not avail himself of this access despite his request in the Motion to Change to be reintroduced to his daughter. The Applicant observes that the Respondent was not prepared to do what was necessary to see the child notwithstanding his statements that he would. He was not able to stop using illegal drugs and was not able to complete parenting and anger management courses. He did not comply with his obligations under the Minutes of Settlement.

[14] The Applicant argues that under the circumstances she had no alternative but to proceed to trial where she was successful on all issues.

[15] The Applicant submits that her Bill of Costs as set out in her cost submissions at Tab 4 is reasonable under the circumstances.

Respondent

[16] The response by the Respondent emphasizes three basic issues. The first is that the bill of costs is excessive. The second is that costs were not dealt with as the case proceeded. The third is that the Respondent is of limited means.

[17] With respect to the form of the Bill of Costs there is also a complaint that the Bill of Costs lacks detail in determining how counsel's time was spent and in knowing what activities in which the law clerks were engaged.

[18] Further it is noted that by way of comparison the total account for Respondent's counsel was $5,537.54 as compared to the total on the Applicant's bill of $17,618.40.

Reply by the Respondent

[19] In a reply filed by the Applicant it is pointed out that the Respondent is a plaintiff in a civil litigation matter involving a claim for personal injury in which he claims $1 million in damages. The Applicant also asserts, with no source given for the information, that the Respondent was offered a settlement in that action in the amount of $380,000.

[20] In any event the Applicant submits that the costs claimed are reasonable and that the request for substantial indemnity costs at 90% of the total, which is $15,856.56, is justified in the circumstances this case. However the Applicant also advances that if partial indemnity costs were awarded at 66%, the amount of $11,628.14 would be the appropriate amount.

DISCUSSION

[21] As a first comment it is noted that the Bill of Costs set out at Tab 4 of the Applicant's submissions is detailed and comprehensive. It more than provides sufficient detail to establish what the lawyers and clerks were doing.

[22] The successful party in this action, the Applicant, is entitled to her costs. The presumption in Rule 24 (1) applies.

[23] In assessing the costs it is necessary to consider the factors set out in Rule 24(11). It is clear that this action was important to both parties, although not legally complex or factually difficult. After considering the criteria set out in Rule 24(5) it is clear that the Applicant acted in a reasonable manner throughout.

[24] In looking at the actions of the Respondent it is important to note a distinction between unreasonableness as it relates to the process of the litigation, as opposed to the inherent difficulties the Respondent has with reference to his alcohol and drug addictions and his behavioral frailties. In terms of the decisions he made in this litigation there was nothing inherently unreasonable. The breakdown in the settlement was a result of his inability to deliver on what he had hoped for and promised.

[25] Finally as previously noted the impecuniosity of the Respondent does not in disentitle the Applicant from her costs - but rather goes to the question of quantum.

[26] The court's view is that the starting point for costs in this case is partial indemnity costs at 66%, which is $11,628.14. There was nothing unreasonable about the litigation decisions made by the respondent. Moreover the case was not complex. Therefore in my view partial indemnity costs are appropriate.

[27] However, further adjustments need to be made with reference to the lack of some cost awards made at motions and conferences on an ongoing basis and also with reference to the limited means of the Respondent.

[28] On occasion counsel do not speak to costs with respect to individual motions or conferences. Sometimes conferences are not appropriate forums for a costs discussion because the parties are required to attend in any event. On occasion motions deal with costs, but typically cost are reserved. In this case is it is unclear as to the approach taken by counsel. The lack of specific cost orders made concerning individual steps in the proceedings does suggest that the cost claim by the Applicant should be modestly reduced.

[29] The larger question is how to respond to the apparent lack of money available to the Respondent. There is an issue with reference to the personal injury litigation perhaps providing funds. However that is highly speculative and there is no confirmation that any monies will be forthcoming. Nevertheless the Respondent is not completely without resources. He is able to do some form of work, albeit that work may be limited because of an injury he suffered. (Although he still seems to be able to work out on a regular basis as is evidenced in his material filed in the Motion to Change proceeding.) He will be entitled to social services that will provide him with some monies and he has the support of other persons as well. It is noted that he is a relatively young man and is generally physically fit and is quite capable, if he extends himself, of earning a sensible income.

DECISION

[30] After making the adjustments that have been commented upon, the court is of the view that the Respondent should pay costs to the Applicant in the amount of $8,000.00.

[31] These costs are inclusive of HST and are payable forthwith.

Released: February 7, 2014

Signed: "Justice Brophy"

Footnote

[i] The comparative with reference to the costs of the Respondent in this proceeding at around $5,000.00 and the costs of the Applicant at around $17,000.00 is a significant discrepancy. It is impossible for the court to do a meaningful comparison without more information - but it is startling.