Starr Robin Ryan McCue v. Tara Lee Gerhards, 2012 ONSC 661

Court File and Parties

COURT FILE NO.: 03-FL-2297-2 DATE: 2012-01-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Starr Robin Ryan McCue, Applicant

• and -

Tara Lee Gerhards, Respondent

COUNSEL: Katherine A Cooligan, for the Applicant Julie J. Gravelle, for the Respondent

HEARD: via written submissions

BEFORE: Madam Justice B. R. Warkentin

Decision on Costs

1In my Endorsement of September 6, 2011 I requested written submissions from the parties regarding the issue of costs. I have received written submissions from the parties and have considered their positions.

2This was an emergency motion brought by the Applicant father regarding the parties’ son’s residence. The Applicant father was successful in the motion in continuing the prior order of Mr. Justice R. Smith of February 14, 2011until the assessment process had been completed.

3The Applicant alleges that the Respondent mother was in breach of that February 14, 2011 order which necessitated the emergency motion (together with a procedural motion seeking leave to bring the emergency motion).

4The Applicant seeks cost on a full recovery basis of $9,000.00.

5The Respondent submits that no award of costs should be made because she is financially unable to pay a costs order and continue to engage her counsel with the family law litigation. She also noted that she is a recipient of Ontario Works and is unable to secure employment due to a medical condition.

General Principles of Costs

6An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

7Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. If success is divided, the court may apportion costs as appropriate.

8The factors which must be considered under Rule 24(11) are:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signatures of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

9In addition to the enumerated factors in Rule 24(11), one must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The Ontario Court of Appeal in Boucher v. Public Accountants Council For The Province of Ontario 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), albeit a case which was not a family law case, stated that the fixing of costs does not begin or end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the amount of costs is also a relevant consideration.

10Although the Court of Appeal indicates that the setting of costs is not a mechanical calculation of hours multiplied by rates, the factors set out in Rule 24(11) do direct the court in coming to its decision to look at the time spent by the lawyer for the successful party and the rates of that lawyer.

11Rule 24(11)(f) read in conjunction with s. 131 of the Courts of Justice Act, provides the court with a wide discretion when deciding the issue of costs. The conduct of the parties is one of the additional factors that may be considered when exercising the discretion whether or not to order costs.

Disposition

12The Applicant was successful however, I also agree with the Respondent that the costs claimed are disproportional and exceed what an unsuccessful party would reasonably expect to pay in these circumstances.

13In the case at bar the issues relate to the residence of the parties’ son and notwithstanding my endorsement, the status quo of the child’s residence may change, and indeed appears to have changed as a result of the assessment and other factors. That evidence was not yet available for consideration at the emergency motion.

14The Respondent mother should have returned to court to seek an interim change in the child’s residence rather than unilaterally withholding him from the father.

15Because of the circumstances of this case where the issue of the child’s residence has been ongoing with changes occurring after my endorsement and indeed in spite of my endorsement on consent of the parties, and in light of the Respondent mother’s financial circumstances, I am prepared to award only nominal costs to the Applicant father.

16Costs are fixed in favour of the Applicant in the amount of $150.00.