SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-7286M
DATE: 20120626

RE: ROBERT GREEN
Applicant

v.

LAURA COOK
Respondent

BEFORE: CONLAN J.

COUNSEL:
Robert Green, in person
Carol A. Allen, for the Respondent

ENDORSEMENT RE COSTS

Background

[ 1 ] After a lengthy family law trial in Owen Sound, this Court reserved and ultimately released its Reasons for Judgment on May 24, 2012. In short, Ms. Cook was awarded sole custody of the child; Mr. Green was granted access to his daughter on terms; Mr. Green was ordered to pay child support, both arrears back to 2010 and ongoing, as well as a share of section 7 Guideline expenses; Mr. Green was ordered to make an equalization payment to Ms. Cook which reflects an unequal distribution of net family property in favour of Ms. Cook; and a divorce was granted.

[ 2 ] I indicated in my Reasons for Judgment that the Court was inclined to think that there should be no Order regarding costs given the mixed results, however, I stated that I would entertain brief oral submissions on costs if the parties were unable to resolve that issue. Those submissions were heard at court in Owen Sound on June 22, 2012. I reserved.

Positions of the Parties

[ 3 ] Mr. Green, self-represented, requests costs in the amount of $69,743.58 plus tax. He filed with the Court a one-page typed “Summary of Costs” which claims $57,858.58 for expenses prior to trial and a further $11,885.00 for trial, excluding tax.

[ 4 ] Mr. Green argues that he is entitled to costs because he was successful at trial, particularly on the issue of access; that he at all times acted reasonably throughout the entire proceeding; that Ms. Cook acted unreasonably by, as just one example, ignoring recommendations from the Court-ordered assessor; and that his resources are limited while Ms. Cook’s are not.

[ 5 ] Ms. Cook, through her counsel, requests costs in the amount of approximately $37,000.00 for fees plus about $9,000.00 for disbursements, tax included, on a partial indemnity scale. Alternatively, Ms. Cook asks for about $25,000.00 for fees plus approximately $9,000.00 for disbursements, tax included, representing roughly half of the fees claimed on a substantial indemnity basis. Ms. Cook filed with the Court a Bill of Costs including time dockets. Ms. Cook further requests that any costs award made against Mr. Green be enforced as a support Order through the Family Responsibility Office.

[ 6 ] Ms. Cook advances several arguments in support of her request for costs but primarily that she was more successful than Mr. Green at trial.

Analysis

[ 7 ] There are no relevant offers to settle made by either party to consider on the issue of costs. Mr. Green spoke in his submissions about offers made by Ms. Cook, however, I do not know all of the details of those offers or how they compare with the result after trial, and further, I was advised by Ms. Allen that those offers to settle were made by Ms. Cook without prejudice.

[ 8 ] Costs are discretionary. No Rule requires the Court to make any costs award: Murray v. Murray, 2005 46626 (ON CA) , [2005] O.J. No. 5379 (C.A.). I have considered the general principles of costs as outlined in Rule 24 of the Family Law Rules (FLR) and, by analogy, Rule 57.01 of the Rules of Civil Procedure and section 131(1) of the Courts of Justice Act . I have kept in mind the paramount consideration that any costs Order must be fair, just and reasonable in all of the circumstances.

[ 9 ] There is a presumption that a successful party is entitled to the costs of the case: Rule 24(1) FLR. If success is divided, the Court may apportion costs: Rule 24(6). There are three fundamental purposes underlying costs awards: to indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate conduct by litigants: Serra v. Serra , 2009 ONCA 395 , [2009] O.J. No. 1905 (C.A.).

[ 10 ] Having considered the matter carefully and having ruminated on the submissions, my inclination espoused at paragraph 4 in the Reasons for Judgment remains: each party ought to bear his/her own costs. There will be no costs Order.

[ 11 ] I do not agree with Mr. Green that Ms. Cook clearly acted unreasonably throughout this proceeding. The fact that I ruled against her primary position on the issue of Mr. Green’s access to their child does not automatically equate to a finding of unreasonableness on the part of the Mother. She was entitled to her position that there should be no access, notwithstanding prior Orders and the opinions of the experts. That position was ultimately not successful but was not clearly unreasonable or made in bad faith.

[ 12 ] I do not agree with Ms. Cook that she was more successful than Mr. Green. Success is not measured by simply counting up the number of “wins” in terms of issues for one side versus the other. It is true that Ms. Cook was awarded sole custody of Katie, child support and an equalization payment that reflects an unequal distribution of net family property. But child support was hardly a contentious issue at trial – very little evidence was presented and virtually no time was expended on that matter. The two most hotly contested issues at trial were (i) whether Mr. Green should have any access at all to his daughter and (ii) whether the net family property ought to be divided equally between the parties. Of those two issues, the former occupied more time and more witnesses and was clearly the battleground at trial. On that issue, Mr. Green was successful.

[ 13 ] Given the mixed results at trial, I am convinced that the most fair, just and reasonable result is no costs awarded to either side.

[ 14 ] In addition to the divided success point, I must consider Mr. Green’s financial circumstances. He has limited means. He has already been ordered to pay child support arrears and ongoing support for his daughter. He will already have significant travel costs in order to spend time with Katie. Self-represented litigants do not get a “free pass” on costs simply because they come to Court without counsel. They are not entitled to some intensified degree of sympathy from Courts just because they act for themselves. Having said that, I do not want to crush Mr. Green. I do not want to make him unable to meet the other parts of the Final Order. I do not want to stifle cooperation. I want to foster it. The parties need a clean start.

[ 15 ] These factors, in and of themselves, would not necessarily have led me to my conclusion on costs, but these factors do support my decision that there ought to be no costs Order given the divided success.

Conclusion

[ 16 ] There are no costs ordered.

[ 17 ] “Children are the living messages we send to a time we will not see” (John W. Whitehead). I would encourage Mr. Green and Ms. Cook to behave towards each other in a way that will make their daughter proud.

Conlan J.

DATE: June 26, 2012

COURT FILE NO.: 09-7286M
DATE: 20120626

SUPERIOR COURT OF JUSTICE - ONTARIO RE: ROBERT GREEN Applicant v. LAURA COOK Respondent BEFORE: CONLAN J. COUNSEL: Robert Green, in person Carol A. Allen, for the Respondent ENDORSEMENT ON COSTS Conlan J.

DATE: June 26, 2012