SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-117-11

DATE: 2013-02-25

RE: Douglas Wayne Quinn - Applicant

Lisa Ann Nicholson - Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL: Applicant – Self-represented

Amy A Priestley, for the Respondent

COSTS E N D O R S E M E N T

[1] The Parties have now filed their written submissions on costs, as directed in my Endorsement released January 10, 2013. The following is my ruling on the question of costs.

[2] The Respondent submits that, as she was fully successful on the Motion to strike the Applicant’s pleadings, she is presumptively entitled to her costs. She submits further that the nature of the case is such that an award of substantial indemnity costs is warranted. She argues that whereas she acted reasonably throughout, the Applicant acted unreasonably and in bad faith.

[3] The Respondent has submitted a Bill of Costs in the amount of $7,554.72, calculated on a substantial scale, inclusive of disbursements and HST. The fee portion of this figure is the sum of $6,504.45, based upon counsel’s time of 26.9 hours @ $225.00 per hour and a clerk’s time of 4.5 hours at $100.00 per hour.

[4] The Respondent submits that the Applicant’s behaved unreasonably and engaged in conduct that bordered on bad faith. She stated further that he intentionally intended to mislead and deceive the Court, and set about to cause the Respondent financial hardship by increasing her legal fees. She argues that the Applicant’s conduct did not stem from bad judgment, carelessness or negligence.

[5] I agree that the Applicant’s conduct “bordered” on bad faith, but I am not satisfied that it crossed the line. In making this finding, I make some allowances for the fact that the Applicant represented himself in the proceeding and cannot be taken to be fully conversant with best practices in written and oral advocacy to a level expected of members of the bar. I therefore find that a costs award on a full recovery basis is not warranted.

[6] The Applicant has pointed to his inability to pay a costs award, and submitted that the imposition of a costs award would impact his ability to pay child support and to exercise access to the child. Based upon the record, I accept that this is the situation that the Applicant finds himself in. The Applicant pointed to the case of Murray v. Murray (2005), 2005 46626 (ON CA), 79 O.R. (3d) 147 (C.A.) for the proposition that the court may, in its discretion, decline to order costs where the effect of the costs ward would be to likely destroy whatever chance the party may have to achieve financial self-sufficiency.

[7] Justice G.A. Campbell considered Murray in the case of Snih v. Snih 2007 CarswellOnt 3549 (Ont. S.C.J.) and commented at para 10 as follows:

The courts have now followed the Murray decision and regularly not only consider the reasonableness of the amount of the costs sought in the circumstances, and the reasonable expectation of the costs that a losing litigant could anticipate, but also a party's ability to fund (or pay for) a cost order and whether that obligation would affect the care, maintenance or interests of the children.

[8] Applying these principles, I find that a costs award of $3,000.00, inclusive of fees, disbursements and HST would be appropriate in the circumstances and it is ordered that the Applicant pay costs in this amount to the Respondent.

[9] I am not satisfied that this costs order was made substantially in connection with a claim for child support. The motion was made to strike the Applicant’s pleadings, which primarily addressed issues other than child support. As indicated in my Endorsement, the remaining issues in the Applicant’s pleading centered on access, the Applicant’s claim for spousal support and the Applicant’s property claims, including the claim for unjust enrichment. I therefore decline to order that this costs order be enforced by the Family Responsibility Office in the same manner as a support obligation of the Applicant.

D. A. Broad J.

DATE: February 20, 2013