Court File and Parties

Court File No.: 33238-01
Date: 2012-03-01
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shirley Ann Metzger, Applicant

AND:

Brian Ray Metzger, Respondent

BEFORE: The Honourable Mr. Justice P. J. Flynn

COUNSEL:
Diane J. LaRocque, for the Applicant

Pamela L. Hebner, for the Respondent

ruling on costs

Ruling

[ 1 ] The Applicant was completely successful at trial and is entitled to costs.

[ 2 ] There is no doubt that the issues and answers at stake were and remain extremely important to the parties, especially to the Applicant. Because of the attitude of the Respondent it may have been a difficult case for the Applicant to pursue but the issues were not complex.

[ 3 ] The Respondent persisted to the commencement of the trial, indeed through a first day mid-trial conference with another judge which occupied a full day, to insist on the Applicant supporting herself. The reasons in my ruling on the trial itself should make it abundantly clear why this was an ill conceived strategy.

[ 4 ] That strategy was unreasonable and the Respondent must bear the brunt of that. So the Applicant seeks costs against the Respondent on a substantial indemnity basis in the amount of $72,000 inclusive of disbursements and HST. I am very concerned by the Respondent’s submission that fixes the amount of those costs on the Applicant’s behalf in accordance with the Applicant’s own dockets at slightly in excess of $57,000, all inclusive. It simply can’t be that the Applicant would be entitled to in excess of $14,000 in costs for the preparation and submission of these costs submissions.

[ 5 ] The Applicant engaged in what I would call overkill by originally seeking to call some 13 witnesses, most of whom would have dealt with whether or not the mother ought to be working.

[ 6 ] It is clear from her submissions that the Applicant seeks to use costs to punish the Respondent’s behaviour throughout the matter.

[ 7 ] As well, the Applicant cites various Offers to Settle which she says ought to affect my Ruling on Costs to the extent that substantial indemnification be made. The Applicant made an Offer to Settle on February 5, 2008 and another one on June 6, 2011 and relies on the fixing of the support arrears at the conclusion of the trial to say that “the end result will be the trial decision is more favourable to the Applicant”. That last offer was not made seven days before the trial began.

[ 8 ] In my view, neither of the offers triggers the consideration of Rule 18(14) with respect to full recovery costs.

[ 9 ] It must also be said that the Respondent made an Offer to Settle all issues in March 2012, which provided for child support based on anticipated income of $80,000 per year and a lump sum spousal support award of $20,000 payable forthwith. That offer was not even considered by the Applicant.

[ 10 ] Another thing that must be considered in making an award of costs is the financial situation of the parties, namely the ability to pay the cost order. The Respondent submits that it will be difficult for him to pay the support award as well as a hefty costs award, while the Applicant argues that the fact of the Respondent’s LIRA pension in an amount over $170,000 ought to persuade me that the Respondent has the ability to pay a costs order on a substantial indemnity basis.

[ 11 ] An award of costs must be fair and reasonable and in accordance with the reasonable expectations of the losing party. The Respondent shows through his own Cost Outline that he would have claimed total fees and disbursements in the amount of $16,388, and attributes this to the frugality of his own lawyer. I would simply say in answer to this that one must take the adverse party’s counsel as one finds her and cannot dictate the way that a lawyer on the other side applies themselves to the file.

[ 12 ] I agree with counsel for the Respondent that neither party can really afford this kind of litigation. I am also mindful of the submissions of the Respondent that there were a number of interim orders made in this proceeding only one of which reserved costs to the trial judge. I agree with the Respondent’s lawyer that costs of all the other interim orders ought not to be included in the costs awarded at trial. Costs are meant to be dealt with as each event occurs.

[ 13 ] It is simply not fair nor reasonable nor within the reasonable expectation of the Respondent that the Applicant have her full recovery costs in an amount that seems to exceed even her docketed time. Moreover she is not entitled to costs for those earlier interim motions. However, the award of costs in this case must say something about the unreasonable attitude of the Respondent in requiring that the Applicant support herself in the face of the reality of her raising two severely autistic children. I have no difficulty with the hourly rates attributed to counsel and staff for the Applicant. But this case was pursued with a certain zeal that amounted to time – churning overkill.

[ 14 ] As no real issue was raised by the Respondent as to the Applicant’s disbursements I would allow them as is. That means that the alternate partial indemnification Bill of Costs sought by the Applicant would amount to $52,908.35. Even this amount, which reasonably represents full indemnification, is excessive in a case such as this. Accordingly I would fix costs of the Applicant in the all inclusive amount of $40,000.

[ 15 ] The Applicant submits that the Respondent may consider a second assignment in bankruptcy (without any evidence for that assertion) to avoid payment for the judgment for costs and asks that the court order that the Respondent transfer an amount equal to the amount of arrears of support and costs from his LIRA to the Applicant, citing Sections 37(2)(c) and 34(1)(c), (k) of the Family Law Act . While I have no doubt that those sections authorize me to make such an order in respect to the spousal support arrears I am not all certain that there is authority for that proposition with respect to the costs rulings. Moreover, there was not full argument of that request before me and I decline to make the order sought.

P. J. Flynn J.

Date: March 1, 2012