SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 339/09
DATE: 20120426

RE: Kevin William Latham v. Sara Anne Craig

BEFORE: J. Mackinnon J

COUNSEL: Kevin William Latham, self represented, Applicant
Mark S. LaFrance, for the Respondent

DATE HEARD: by Written Submissions

E N D O R S E M E N T R E G A R D I N G C O S T S

[ 1 ] This matter was heard at a bifurcated trial by the late Justice Thomson. The custody/access part of the trial was heard over five days in August 2011. On August 17, 2011, Justice Thomson issued an Endorsement which moved primary residency of the child, Kaitlan, born Feb. 9, 1998, from the father in Kingston to the mother in Mallorytown. His Endorsement added that reasons for his decision would be provided following the finalization of the trial. The hearing of the support part of the trial commenced on September 28, 2011, however settled during that day, except with respect to costs.

[ 2 ] Justice Thomson passed before providing reasons or dealing with costs. The parties were advised of this and with their consent, it was determined that another Justice would deal with costs. Regional Senior Justice Hackland has assigned the case to me for that purpose.

[ 3 ] The Applicant seeks an order that each party bear their own costs. The Respondent seeks costs in the amount of $34,979.58 on a substantial recovery basis or in the alternative, $23,319.72 on a partial recovery basis. In addition, she seeks costs of $565.00 for her submissions on costs. The Respondent also submits that 25% of her costs are related to support. She asks for a specific finding in that regard so that the Director, Family Responsibility Office, will enforce that part of the costs award.

[ 4 ] Kaitlan was 13 and one half years of age at the time of the trial. The Office of the Children’s Lawyer had been appointed and had reported to the parents on two occasions that the child was consistent in her wish to change her residence to her mother’s home and to maintain generous access to her father.

[ 5 ] The Respondent seeks substantial recovery costs for several reasons. She says that the trial was lengthened because the father discharged his counsel shortly before trial. He delivered a 97-item Request to Admit on the last permissible day before trial. The Respondent was required to respond to this even though much of it was said to be irrelevant to the case and the father did not rely on it in any way at trial. The Respondent maintains that the Applicant was unreasonable in pursuing the trial contrary to the child’s wishes. Finally, the Respondent refers to the parties’ offers. Her offer dated July 27, 2011 matches the trial judgment with respect to the issue of the child’s residency. It is much closer to the outcome of the child support issues than was the father’s offer. The Respondent submits that the Applicant’s offers on the residential issue were unreasonable in disregarding the child’s wishes, maintaining residency with him and calling for a review in one year.

[ 6 ] I am not persuaded that the father’s litigation conduct lengthened the trial. It does appear that the time required for trial was initially incorrectly estimated by both parties. In my view, the only submission made by the Respondent that entitles her to substantial recovery costs is that her offer on the child’s residence matched the trial judgment. It was severable so that the Applicant could have accepted that part of the offer as a standalone offer. The other allegations do not meet the threshold for the type of unreasonable litigation conduct that could entitle her to costs on a substantial recovery basis.

[ 7 ] I agree that the Applicant’s offers did not conform to the trial outcome. He was not successful on the primary issue of the child’s place of residence. His offers with respect to child support were very low. While he did ultimately settle that issue on the day of hearing, his low offers clearly necessitated that the Respondent proceed to trial on that issue and she was clearly successful.

[ 8 ] The Applicant submits that he was pursuing what he thought to be in his child’s best interests. He says that to award costs against him would wrongly discourage parents from doing what they felt was best for their children. I do not accept this submission. A parent engaged in custody related litigation needs to evaluate their chance of success in an objective way, not merely on the basis of their feelings and beliefs as to what is best for the child. A successful parent in a custody case is entitled to the same presumption in favour of costs as is any other litigant.

[ 9 ] The Applicant makes many submissions that essentially challenge the correctness of the trial judge’s decision. In deciding the issue of costs, I may not go behind the trial judge’s decision. He also refers to comments he says were made by the case conference and settlement conference judges on the probable outcome of the case. It is improper to communicate settlement recommendations made by another judge at a conference to me. I may not take them into account.

[ 10 ] The Applicant also takes issue with the Respondent’s Bill of Costs. He disagrees that experienced counsel would have spent so much time on the file. He submits that the daily counsel fee of $7,500.00 inclusive of preparation is too high. I have reviewed the submission. The total bill presented by counsel for a six day hearing inclusive of fees, disbursements and applicable taxes came to $46,639.45. Fees totaled $40,000.00. Those fees are not out of line with the duration of the trial and amount of preparation that the Court would expect from counsel. What the bill does not do is to break down the services provided before and after the offer dated July 27, 2011 was delivered. This is an important omission because the Respondent is entitled to substantial recovery costs for the portion of the bill that relates to the residency issue after the date of service of that offer. Counsel explains that the counsel fee of $7,500.00 per day of trial includes preparation time. Without more assistance, I have determined to allocate that fee equally between preparation and the actual trial days. Half of the counsel fee will be allowed at substantial recovery and half at partial recovery.

[ 11 ] Making this adjustment for the part of the case associated with the residential issue, the fees, inclusive of disbursements and taxes, are allowed at $25,875.85. The Respondent is also entitled to partial costs for the support issues of the claim which I allow at $3,107.53, also all inclusive.

[ 12 ] The total comes to $28,983.38.

[ 13 ] The Applicant submits that he can ill afford to pay any of the Respondent’s costs. The Applicant earns $103,000.00 per annum compared to the Respondent who earns $36,000.00. She had filed for bankruptcy prior to the hearing and her financial statement in the trial record shows a net worth of $18,815.00. The Applicant has a better net worth position, of $63,000.00. In these circumstances, little weight can be given to the Applicant’s claim that he can ill afford to contribute towards the Respondent’s legal fees. He is in a better financial position than she. A prudent litigator, with or without representation, will always consider one’s exposure to a potential costs against award in deciding whether to pursue a claim to the conclusion of trial.

[ 14 ] With respect to the proportion of costs claimed for support, it is not necessary to determine a percentage. The order will go requiring the Applicant to pay to the Respondent costs fixed at $28,983.38, of which $3,107.53 is on account of support issues and is enforceable as support by the Director, Family Responsibility Office.

Madam Justice J. Mackinnon

RELEASED: April 26, 2012