Children and Family Services for York Region v. G.S.

CITATION: Children and Family Services for York Region v. G.S., 2011 ONSC 2824 NEWMARKET COURT FILE NO.: DC-09-00079-00 DATE: 2011-05-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children and Family Services for York Region, Applicant (Respondent in Appeal) - and - G.S., Respondent (Respondent in Appeal) - and- A.S., Respondent (Appellant in Appeal)

BEFORE: The Hon. Mr. Justice M. Edwards

COUNSEL: Billie Locke, for the Applicant (Respondent in Appeal) Rui Alves, for the Respondent (Respondent in Appeal) Gary Joseph, for the Respondent (Appellant in Appeal) Deborah Herriot-Howes, for the Office of the Children’s Lawyer

HEARD: December 16, 2010

COSTS ENDORSEMENT

[1] I have received and reviewed the costs submissions of the parties. If there is one thing that is clear to me from of a review of these submissions is the apparent lack of insight that the appellant, A.S. (the mother), has with respect to the cost consequences of her actions in these proceedings. It is suggested by the appellant in her submissions that the delay in getting her appeal heard lies at the feet of either the respondent and/or the Office of the Children’s Lawyer and the Children and Family Services for York Region. An appeal is perfected and ready for hearing when the appeal has been perfected by the appellant. To suggest that the hearing of the appeal in this matter was delayed due to the actions of the respondent and others defies logic. A further example of the appellant’s lack of insight can be seen in her apparent lack of concern with respect to what appear to have been legitimate attempts by the respondent to settle the within motion and the earlier stay motion before Healey J. My review of the appellant’s submissions makes no reference to any offer made by the appellant to resolve the within motion. In my ultimate disposition of the costs demands of the parties, I have taken into account the offers made by the respondent which in my opinion reflected an outcome better than what occurred as a result of my order.

[2] The respondent seeks costs of the motion before me in the amount of $23,666.15. This amount is on a substantial indemnity basis. On the motion before Healey J., the costs demands are in the amount of $14,716.27, again on a substantial basis. I note in the bill of costs for the motion before Healey J. the hourly rate for Mr. Alves is shown as $395 while on the motion before me the hourly rate is shown as $425. There is no explanation for this change in the hourly rate as it covers essentially the same time frame for both motions. This is a relatively small matter but, I have reduced the bill of costs for the motion before me to reflect an hourly rate of $395.

[3] The appellant in her submission suggests I have no jurisdiction to deal with the costs of the stay motion before Healey J. It is submitted that the endorsement of Healey J. is comprehensive and dealt with all costs arising from all motions brought and heard before her, and as such, the respondent cannot claim additional costs in relation to that motion. The respondent submits that the first stay motion was abandoned and that the costs of the abandoned motion were not dealt with by Healey J. I dealt with the disposition of the motion before Healey J. by noting that:

The reasons of Healey J. make clear that the mother’s stay motion was stayed until such time as she complied with terms imposed by the Order of Healey J. As such, it cannot be said that the mother’s stay motion was dismissed. It was simply stayed pending compliance with terms imposed on her. The motion does not to appear to have been proceeded with. It effectively was abandoned and thereafter revived in a manner before me. The mother’s stay motions are now dismissed for reasons set forth above.

[4] The appellant suggests I have no jurisdiction to deal with the costs of the abandoned motion before Healey J. I found that the motion was abandoned and effectively revived before me. While I agree that technically I do not have jurisdiction to deal with the costs of the motion before Healey J., I am entitled, when I fix the costs of the motion before me, to consider the conduct of the parties. Family Law Rule 24(11) provides a list of factors for the court to consider when settling the amount of costs including: the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each parties behaviour in the case; the lawyers rates; the time properly spent on the case; drafting documents and correspondence; attempts to settle; preparation, hearing, argument, and preparation of the order; and any other relevant matter. It is clear to me that the appellant was slow in perfecting her appeal such that the appeal could not be heard on its merits until March of this year. It is also apparent that the first stay motion before Healey J. did not proceed because of the failure of the appellant to have complied with various outstanding court orders. The additional costs of the motion that I ultimately dealt with was brought about largely as a result of the conduct of the appellant. These costs should not be visited on the respondent.

[5] The appellant suggests that her motion before me was not without merit. It is correct to note that I found that there may be merit in the appellant’s appeal. These comments were in no way determinative of the motion. Ultimately, the appellant’s stay motion was dismissed. The respondent is entitled to her costs. The appellant, had she accepted the offer of the respondent of November 25, 2010, would have had access to the children on a supervised basis twice a week for 2 hours apiece. Perhaps more importantly from the appellant’s perspective the review hearing would have been adjourned pending the disposition of the appeal. The costs of the first stay motion would have been reserved to the appeal panel and the costs of the second stay motion would have been borne by each party if the offer had been accepted by December 3, 2010. In my opinion, the terms of the offer were clearly more advantageous to the respondent than my ultimate disposition. The offer fell on deaf ears. The appellant cannot now complain when she is required to bear the costs of the motion.

[6] The guiding principle in awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay (see Boucher v Public Accountants Council (Ontario) 2004 14579 (ON CA), 2004 CarswellOnt 2521 (Ont. C.A). In fixing costs the court is to stand back and assess the reasonableness of the counsel fee from the perspective of the losing party. As various costs decisions in the past have made clear, the fixing of costs is not a simple exercise of multiplying hours times hourly rates. I note in the appellant’s bill of costs that Mr. Joseph’s total comes to approximately $13,000 vs. the respondent’s total of $24,000. There is really no justification for one bill to be nearly twice the costs of the other, particularly, where the higher costs demand is that of the respondent. Weighing all of the factors that I have noted, I fix the respondent’s costs in the amount of $16,500 plus HST, plus disbursements of $450. There shall be no costs of the O.C.L. or the C.A.S.. The costs are payable forthwith.

Edwards J.

Date: May 11, 2011