Court File and Parties

Ontario Court of Justice

Date: 2015-10-19

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 with respect to Motion heard 12 June 2015

Released on 19 October 2015

Counsel:

• Sara C. Wisking — counsel for the Applicant
• Scott M. Merrifield — counsel for the Respondent

BROPHY J.:

INTRODUCTION

[1] The Respondent seeks his costs with respect to a Motion brought by the Applicant which sought to restrict the access of the Respondent to the child of the parties, to require the Applicant to fund a Section 30 custody and access assessment, and mandate that the Applicant participate in drug and alcohol testing.

[2] The Motion was argued on 12 June 2015 and after consideration was largely dismissed on 16 June 2015 with oral reasons provided on 8 July 2015. The relief ordered was either consented to or was incidental.

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

PRINCIPLES

[4] 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).

[5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 confirmed 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.

[6] These principles inform any consideration of costs.

BACKGROUND

[7] The Motion was brought as a result of the Applicant coming into possession of a judge's reasons in a firearms application made in 2011 in the Pembroke area when the Respondent was still in the military. The Applicant extrapolated from those reasons that there were concerns related to the Respondent with reference to mental health and addiction issues. As a consequence the Applicant sought to suspend access or to have it supervised and to seek an order for a section 30 assessment.

[8] The Motion was dismissed with respect to the access and section 30 assessment request and there were only incidental orders made with respect to disclosure of records, that the Respondent was not to consume alcohol in and around the times he was exercising access and that the Respondent was not to allow any video recording of access exchanges.

[9] The matter then was continued in front of a Settlement Conference judge who had dealt with the matter in the spring of 2015 and would resume working with the parties on 23 October 2015.

ANALYSIS

Rule 24(1)

[10] In this case the Respondent was successful on the main issues and is presumptively entitled to his costs.

Rule 24(4) and (5)

[11] The successful party did not act unreasonably, save and except that by not monitoring his mailbox a without prejudice order was made in his absence. This however has no direct bearing on the costs of the Respondent.

Rule 24(6)

[12] There is no basis for apportioning costs as the Applicant was wholly successful in the main event, that is to say with respect to access and the section 30 assessment.

Rule 24(8)

[13] Neither party acted in bad faith.

[14] 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.), 2007 O.J. 2164 (Ont. S.C.J.), affirmed 2010 ONCA 196, [2010] O.J. 1064 (Ont. C.A.) and Buchanan v. Buchanan, [2009] O.J. No. 674 (Ont. S.C.J.). None of that occurred here.

Rule 18(14)

[15] There was an Offer to Settle made by the Respondent. The offer was for a complete dismissal of the Motion with limited costs being paid by the Applicant to the Respondent. In fact the Motion was not completely rejected and the offer is therefore of mixed benefit in assessing the costs, although it remains that the principal issue in the Motion concerning access was in fact dismissed. Rule 18(16) in any event allows the court to take it into consideration in exercising its discretion over costs.

Rule 24(11) Factors:

(a) Importance, complexity or difficulty of the issues

[16] As in most cases of this nature, that is to say custody and access where there is a long history of litigation and the matter has become highly conflicted, the Motion was of great importance to the parties. The parties, particularly the Respondent thinks of access as the way in which he can have a relationship with his son. The Applicant recognizes that access is important but sees access as an avenue whereby the Respondent harasses her, and also, in her view, puts the child at risk.

[17] However that does not mean that the legal issues were complex or difficult. The law is clear and would be familiar to counsel practicing in this area.

(b) Reasonableness or unreasonableness of each party's behaviour

[18] Given the nature and history of this high conflict case and the importance to the parties of the issues engaged in the Motion, this is not a case where either party behaved unreasonably. The decision of the Applicant to bring the Motion was a mistake, but a mistake made in good conscience and with a rational basis. The response by the Respondent, as crafted by counsel, was measured and appropriate.

(c) Lawyers rates

[19] The hourly rate of Respondent's counsel at $475.00 per hour is high, but not outside the range for counsel specializing in family law with thirty-seven years' experience.

[20] It is noted that in this case one of the major difficulties is that the Respondent has not previously had counsel. It is to be hoped that the involvement of Mr. Merrifield will assist in resolving the ongoing points of dispute between the parties that keeps this case before the courts. Hence it is valuable to have a lawyer with significant experience acting for the Respondent.

(d) Time properly spent

[21] In reviewing the Bill of Costs the first observation is that the account is extremely high for a Motion that involved argument on one day only and then only for approximately one hour. Admittedly it was necessary for counsel to re-attend a week later for the ruling and then approximately a month later for the delivery of oral reasons, but the Bill of Costs asserts that 62.25 hours in all were expended in arguing this Motion. This is far too much.

[22] This observation that the costs are very high is in fact shared by counsel for the Respondent in paragraph 18 of his brief wherein he acknowledges that the costs are "unusually high" for an interim access Motion.

[23] It is also noted that counsel for the Respondent did not meet in person with the Respondent.

[24] In terms of the work done, is apparent from the Bill of Costs that a great deal of time was expended dealing with research related to the variation of a final order on an interim basis, which as has been noted above is not a complex issue, and the question of issue estoppel related to the reasons in the firearm application. I find this expenditure of time not related in any significant way to this Motion because the law is clear and the question of issue estoppel was not relevant and indeed was not argued.

[25] The bill of costs also sets out significant time with reference to administrative matters of no great moment and review and drafting of ordinary correspondence. None of these matters should be included in the costs analysis.

[26] A final comment is with reference to travel time. There is some inconsistency in the two trips taken by Mr. Merrifield to Goderich. In my view one hour and fifteen minutes from London to Goderich is approximately correct, but the hourly rate to be charged should be reduced substantially as it is not legal work that is being performed.

[27] After review of the Bill of Costs in detail, in my view, the amount docketed with reference to fees that is relevant to the case is $8,139.00. After allowing for HST the total would be $9,197.00.

(e) Expenses properly paid or payable

[28] The claim is for $314.37 in disbursements after accounting for HST. It is noted that there is no claim for mileage. The expenses set out by the Respondent are completely fair.

(f) Any other relevant matter

[29] It seems to me that the Motion was precipitous and in retrospect unwise, particularly given that there had been a modestly successful Settlement Conference a matter of weeks before the Motion was launched.

[30] However that assessment has to be tempered by the reality of the litigation. There was no real prospect of being able to discuss with the Respondent the concerns raised in the firearms application reasons because the attitude of the Respondent generally in this litigation has been argumentative and obstructionist. It must be remembered that the reasons of Justice Selkirk were of a negative nature with respect to the Respondent in terms of his credibility and his behaviour.

[31] It is also necessary to maintain proportionality between the parties with reference to costs. In that regard the cost order made June 3, 2014 requiring the Respondent to pay to the Applicant $4,296.89 related to a Motion to Change brought by the Respondent for a change in custody. It is on a par with this Motion in terms of its importance to the parties and after an argument on the written record lasting approximately a half day the result was a complete victory for the Applicant. The costs awarded were a function of the Bill of Costs provided by Ms. Wisking, albeit a less experienced lawyer than Mr. Merrifield charging a lower hourly rate.

[32] The court also takes into consideration the financial position of the parties. The Applicant is the custodial parent and no doubt has significant expenses related to the child. A cost order made at the high end of the claim made by Respondent's counsel of $14,439.37 would put the home in which the child resides under financial strain.

[33] It is also noted that the Respondent has been delinquent in paying the cost orders that have been made previously.

[34] The above factors necessarily impact upon the assessment of the proper level of costs. The overarching rule in any cost award is that the order should be fair and reasonable given the nature of the litigation. In this case I am of the view that the claim for costs should be reduced significantly so as to reflect that principle of reasonableness. See Hackett v. Leung, [2005] O.J. No. 4888 (Ont. S.C.J.) and Cawdrey v. Cawdrey, 2011 ONSC 416.

CONCLUSION

[35] In my view, given the history of the litigation and the cost awards that have been made in the past, I am of the view that the fair and reasonable costs that should be paid by the Applicant to the Respondent for this Motion are in the amount of $5,000.00, inclusive of HST, payable forthwith.

Released: 19 October 2015

Signed: "Justice Brophy"