Court File and Parties

Ontario Court of Justice

Date: October 2, 2019

Court File No.: 17-0457

Between:

Janelle Burley Applicant

— AND —

Christopher Bradley Respondent

Before: Justice M.G. March

Trial held: March 1 and 22, April 12 and June 27, 2019

Reasons for Judgment released: September 4, 2019

Counsels' Written Cost Submissions filed: September 27, 2019

Ruling on Costs released: October 2, 2019

Counsel:

• Duncan Crosby — Counsel for the Applicant
• Michael Conroy — Counsel for the Respondent

Reasons for Judgment on Costs

M.G. March J.:

Presumption of Costs

[1] The relevant portion of Rule 24(1) of the Family Law Rules reads as follows:

"There is a presumption that a successful party is entitled to the costs of a… case."

Success at Trial

[2] Here, the Respondent, Mr. Bradley, was largely successful on the primary issue for trial, namely the scope of the access he should enjoy with his 2 year old daughter, Aleene. It was virtually the sole issue.

[3] Yet, that issue took four days of trial to litigate. In the end, I awarded access to Bradley on a basis that essentially mirrored a formal, written Offer to Settle he made to the Applicant, Ms. Burley, eight days before the commencement of trial on March 21, 2019. He was also largely successful on the subsidiary issues for trial as well.

Applicant's Failure to Settle

[4] To avoid trial or to narrow the issues, Ms. Burley did nothing. She made no Offer to Settle, formally or informally. Intransigence as such comes at a price. As aptly stated by Wilson J. in Hussain v. Alam, 2013 ONSC 2250:

"Parties cannot take an untenable position, refuse to negotiate to achieve a reasonable compromise, and then when the outcome is adverse, plead that it would be unfair to require them to pay costs."

Rebuttal of Presumption

[5] However, Rule 24(1) does speak of a presumption. The presumption can be rebutted.

Respondent's Conduct

[6] I can only wonder how the issue of access might have been resolved at a much earlier stage if Mr. Bradley had behaved more appropriately following separation. Instead, his comportment was very poor. I witnessed gladly a significant change in his attitude over the course of the months during which he appeared before me. I suspect his nascent ability to keep his composure is a product of the good influence his new partner, J.A., has had on him.

Judicial Discretion in Costs Awards

[7] In Powers v. Powers, 2004 ONCJ 245, Zuker J. reminds all jurists that:

"The first principle respecting costs intra partes is that the court has an absolute and unfettered discretion to award or withhold costs. The discretion, however, is a judicial one, and its exercise must be based on material before the court."

[8] Earlier in the Powers decision, Zuker J. listed some of the common considerations in arriving at a costs award when he wrote:

"The court retains its discretion to deviate from the general rule by taking into account the factors of hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance of not upsetting the balance achieved by the award itself."

Applicant's Conduct and Circumstances

[9] I have reflected upon Ms. Burley's conduct over the course of the litigation. It was not entirely unreasonable given the poor start Mr. Bradley got off to. He watched and beset the private married quarters at Garrison Petawawa they once shared on her moving day. Although he did not initiate the eviction process, he did nothing to prolong it. Aleene was a very young child at the time. Ms. Burley was a relative stranger to the Pembroke/Petawawa area. She did not have many options. Mr. Bradley demonstrated a markedly uncaring approach toward her, and by extension, his infant child, in hurrying them out the door.

[10] I do not find that Ms. Burley acted at all in bad faith. Her conduct was motivated mainly out of her eagerness to be the best possible mother to Aleene. At times, it blinded her from seeing the role Mr. Bradley should play as a parent as well, but it was not pernicious on her part.

[11] I have additionally grave concerns about Ms. Burley's ability to pay. She makes a modest salary of $41,000 per annum. At the same time, she was ready, willing and able to fund a protracted legal battle with Mr. Bradley over access in the face of a very standard and ordinary position he took on that very primary issue for trial.

Respondent's Costs Claim

[12] Mr. Bradley seeks $15,803.85 as full recovery of his trial costs. Alternatively, he seeks on a partial indemnity basis, 60% of his trial costs, relying on the decision of the Court of Appeal for Ontario in Inter-Leasing Inc. v. Ontario Revenue, 2014 ONCA 683.

Costs Award Decision

[13] For the aforementioned reasons, mainly the bullheaded, obstinate, immature behaviour exhibited by Mr. Bradley until a very late stage of the litigation, I am prepared only to award costs at 50% of the $15,803.85 sum sought by him, and notwithstanding his Offer to Settle made March 13, 2019, which Ms. Burley chose not to accept.

[14] I do so in spite of Rule 18(14) of the Family Law Rules and the largely favourable outcome obtained by Mr. Bradley following trial.

Final Order

[15] Accordingly, I shall fix costs payable by Ms. Burley to Mr. Bradley in the amount of $7,901.93.

Released: October 2, 2019

Signed: Justice M.G. March