Court File and Parties

Court File No.: FS-6-12
Date: 2012-09-25
Superior Court of Justice – Ontario

Re: Brenda Kearley, Applicant

and

Leon Jude Renfro, Respondent

Before: The Honourable Mr. Justice G.A. Campbell

Counsel:
E.L. Wellhauser, for the Applicant
G.D. McLeod, for the Respondent

Endorsement on Costs

[1] The parties and counsel appeared before me on July 16, 2012 for what, on July 5, 2012 was scheduled as a Settlement Conference.

[2] Also set on July 5, 2012 was an “Emergency” trial for four days, to start August 7, 2012. The issues were to be custody and residency of three children, one of whom was undergoing medical intervention for recently discovered cancer in her leg.

[3] Between July 5 and the Settlement Conference, the Respondent (Father) brought a motion dated July 12, 2012, returnable at the Settlement Conference. In response, the Applicant (Mother) also brought a short-served motion, dated July 13, 2012, also returnable at the Settlement Conference.

[4] Both counsel prepared Settlement Conference briefs. Ms. Kearley’s was 10 pages. Mr. Renfro’s was 16 pages but also included caselaw; the previous costs endorsement of Reid J. of April 10, 2012; much correspondence between counsel between March 9, 2012 and early May 2012; some e-mails; and a letter of June 9, 2012 from Ms. Kearley to Ms. Klodner and Ms. Kirk, written when she was between lawyers.

[5] At the outset of the July 16, 2012 attendance, I advised all three counsel (including Ms. Klodner, counsel for the girls) that I intended to rule on the two motions first, before we entered into a Settlement Conference. Counsel appeared non-plussed by that pronouncement. After some verbal interchanges between counsel and the court, the parties and counsel sought some time to explore resolution of the issue regarding the immediate placement of the girls with their father, together or, depending on Samantha’s medical condition, separately. Of course, I granted that request. After several hours of discussion and contact with McMaster Medical professionals, counsel returned with Minutes of Settlement.

[6] I granted an order according to the terms of the Minutes of Settlement; adjourned the Settlement Conference to a date to be set by the trial coordinator’s office; and cancelled the trial dates that were imminent.

[7] That consent order directed that Alysha and Kayla were to go into their Father’s care that very day and Samantha was to follow within the next week when the medical experts allowed her to travel to British Columbia, where her on-going medical treatment would seamlessly continue.

[8] Counsel have not resolved the costs issue for this step in the on-going proceedings (see Rule 24 (10)). Hence the need for this determination.

[9] I agree with Perkins J. who observed in Davis v. Davis (2004), 2004 19156 (ON SC) , 131 A.C.W.S. (3d) 596, that a costs decision becomes more intricate and challenging when the court must decide who was more “successful” in a step of an action when, after negotiations and compromise, minutes of settlement form the basis of an order.

“The rules instruct me, in r. 24 (1), that the “successful” party is presumed entitled to costs, and in r. 24 (6) that in a case of “divided success”, I may apportion costs “as appropriate”. ... I think that in order for there to be a “successful” party, there must be a declared winner or loser on the issues. That declaration will ordinarily come from a judge, after argument. In this case, we have in effect minutes of settlement. I find that the “divided success” approach of r. 24 (6) is more appropriate here than the winner/loser approach of r. 24 (1).”

[10] Having read both Settlement Conference briefs in their entirety and both motions and supporting affidavits, it became patently obvious that the Applicant Mother sought an order preventing any of the girls spending any of their summer vacation in British Columbia with their Father and that any permanent relocation of any of the girls to British Columbia into their Father’s care should not occur until after Samantha completed her “current medical treatment in Ontario”. (which Ms. Kearley speculated might take up to 40 weeks)

[11] The briefs, Reid J.’s endorsement and the affidavits also made crystal clear that: a) all three girls (ages 14 and 12) had been asking to return to British Columbia to live with their Father for almost a year; b) the Applicant Mother (or her previous lawyer) had adopted a strategy of delay, to overcome the girls’ emphatic and persistent views and preferences; and c) the children’s lawyer, Ms. Klodner, and Ms. Kirk had held a disclosure meeting on June 19, 2012 with the parties and their lawyers and had reported their strong recommendation that the girls be allowed to immediately go into their Father’s primary care. Ms. Kearley ignored that recommendation.

[12] By early July, very extensive efforts had been undertaken by the Father to co-ordinate Samantha’s cancer treatment at the foremost medical facility in Vancouver in order to continue what had been started at McMaster Hospital. Both an oncologist and an oncologist-surgeon had been arranged in Vancouver and had communicated with Samantha’s oncologist in Hamilton. All of the medical professionals agreed that Samantha’s medical crisis was not an impediment to her relocation to British Columbia in July.

[13] Instead of acceding to that plan (which everyone but her supported), Mother’s late-served motion sought an order for a written opinion by the McMaster oncologist regarding “the risk” to Samantha to allow her to relocate to British Columbia “at this time” and an order that that McMaster doctor “attend before a special examiner in Hamilton” to have her opinion cross-examined. This tactic, evidenced by the various other heads of relief included in that last-minute Motion was, I find, a not-so-thinly-veiled further delay strategy.

[14] Ultimately, even though Ms. Kearley eventually signed Minutes of Settlement to allow the girls to relocate, until she was actually in the court room, the Mother’s position persisted unchanged.

[15] In those circumstances, Mr. Renfro was put to every aspect of facing two contested motions and a Settlement Conference and was forced to instruct his counsel to research the law, prepare affidavits, a brief and gird his “legal loins” to face another full-fledged skirmish within the action.

[16] Reid J., in his recent costs endorsement of April 10, 2012, noted that Ms. Kearley’s conduct had been egregious, but ... “not so egregious as to attract what amounts to the punitive provisions of a substantial indemnity costs award”.

[17] But that was then and this is now.

[18] Sub Rules 24 (5), (10) and (11) provide that I should “in a summary manner” decide: what costs are appropriate; whether a party acted reasonably; view the costs in a flexible and balanced way; (see Ostapchuk v. Ostapchuk O.C.A. (2003) CarswellOnt 1661 ); set costs in a fair and reasonable amount rather than any exact measure of the actual costs to Mr. Renfro (see Zestra Engineering Ltd. v. Cloutier , 2002 25577 (ON CA) , [2002] O.J. No. 4495 (C.A.); assess the costs to arrive at a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: ( Moon v. Sher (2004), 2004 39005 (ON CA) , 246 D.L.R. (4th) 440 (C.A.); arrive at an amount that will reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown , 2002 CarswellOnt 2666 (S.C.J.) ; consider the importance, complexity and difficulty of the issues and time properly spent on this motion/Settlement Conference (see Rule 24 (11) (a) and (d)).

[19] Ms. Kearley should have resolved this part of the contest right after the June 19, 2012 meeting with Ms. Klodner and Ms. Kirk. She could then have devoted her time and efforts to facilitating Samantha’s travel to British Columbia as efficiently and safely as possible rather than escalating the legal contest. She chose not to do so.

[20] I therefore find that she acted in an unreasonable and egregious manner and should, as a result, be held responsible for substantial costs thereafter.

[21] That finding is also supported by the fact that Mr. Renfro made a Rule 18 Offer to Settle (see Custody & Access para #11 at Tab C of respondent father’s Cost Submissions) on May 11, 2012, well before Samantha’s diagnosis; the disclosure meeting on June 19; and the July 5, 2012 Lococo J. endorsement (the costs for which are reserved to the trial judge).

[22] I accept parts of Mr. Wellhauser’s Cost Submissions of wherein he correctly asserts that: a) costs that relate to the preparation for and attendance upon the return of the June 29, 2012 Notice of Motion returnable July 5, 2012, as well as the Notice of Motion dated June 4, 2012, also returnable July 5, 2012 (at Tab 32 of the Continuing Record) should not form part of this cost determination; b) efforts by Ms. McLeod since May 11, 2012 that relate to the main action regarding the Application/Answer/Financial Statement should also not be included in this consideration. I agree that I am to consider only all of the legal efforts reasonably attributable to preparation for and attendance at the July 16, 2012 “step”.

[23] I disagree however with Mr. Wellhauser’s submission that I should not assess costs for the preparation of the Settlement Conference briefs and attendance for the Settlement Conference on July 16, 2012 on the basis that ... “it is the invariable practice of this Court not to allow costs for Settlement Conference ...” Ms. Kearley’s unreasonable intransigence on the relocation issue precipitated the “emergency” Settlement Conference and trial dates. As a result, the costs attributable to the preparation of this particular attendance for the (abortive) Settlement Conference should fall to her.

[24] I do however accept Mr. Wellhauser’s submission regarding the “Administration Expense” as well as the “Technology Fees”. I disallow the duplication of those items. I also disallow some of the process servers fees, since only one motion and one Settlement Conference brief needed to be served (not the eight charges set out in the account – one for $109!).

[25] Since I have ruled that Ms. Kearley acted, not in “bad faith”, but “unreasonably” after June 19, 2012, I accept Ms. McLeod’s breakdown between the parties of responsibility for Ms. Klodner, Ms. Kirk and the Family Solutions expenses (as set out at Tab D of the Respondent Father’s Cost Submissions Brief). Accordingly, I order Ms. Kearley to pay $9,306.60 of the total of those costs.

[26] Ms. McLeod seeks “the entirety of the fees, disbursements and taxes of” her bills to Mr. Renfro, included in the Cost Submissions brief. For the reasoning above and recognizing that the work provided between June 21, 2012 through June 28, 2012, inclusive, with regard to efforts relating to the main action and the Notices of Motion returnable July 5, 2012 (at Tabs 30 and 32) (totalling about $4,000.00), I decline to accede to her request that Ms. Kearley be held responsible for all of those fees.

[27] I do however allow costs for July 16, 2012 set in the amount of $8,0000.00, including HST and disbursements, together with additional costs of $1,500 including disbursements but plus HST for the preparation of Ms. McLeod’s very extensive and thorough written Cost submissions.

[28] I decline to order that these costs of ($9,306.60 + $8,000.00 + $1,500.00 + tax of $175.00) $18,981.60 be paid forthwith as sought by Ms. McLeod. Like Reid J., I order that they be paid from the property/equalization settlement or after trial, whichever first occurs.

G.A. Campbell J.

Released: September 25, 2012