ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0298
DATE: 2013-03-26
B E T W E E N:
Laurette Eileen Jarva
Samantha Filipovic, for the Applicant
Applicant
- and -
William Michael Kunka
Martha Petryshyn, for the Respondent
Respondent
HEARD: March 18, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Costs
[1] This is a decision on costs of motions brought by each of the parties, the central feature of which was the issue of custody of the two children of the marriage, ages 5 and 1.
[2] Mr. Kunka sought joint custody of the children, or in the alternative, sole custody - Ms. Jarva sought sole custody. The time that the children should spend with each parent was a significant aspect of the custody issue. Child and spousal support were also issues.
Submissions
[3] Ms. Filipovic, counsel for Ms. Jarva, presented a Bill of Costs in the amount of $7,137.50 for fees, plus disbursements of $48.31, inclusive of H.S.T. However, in submissions, Ms. Filipovic advised that she was asking costs of $3,500.00, inclusive of H.S.T. and disbursements.
[4] Ms. Petryshyn, counsel for Mr. Kunka, presented a Bill of Costs in the amount of $9,886.25, plus disbursements of $55.37, inclusive of H.S.T.
[5] Ms. Filipovic submits that Ms. Jarva was substantially successful on the most contentious issues on the motion, that is, custody and access.
[6] I determined that Ms. Jarva should have custody of the children, with the exception of decisions on health care issues, on which the parties, as registered nurses, would consult one another and decide jointly. I determined that Mr. Kunka should have access that revolved around the parties’ work schedules. This decision, while not according entirely with Ms. Jarva’s position, was more aligned with her proposal than with Mr. Kunka’s.
[7] Mr. Kunka’s submission on the motion was that Ms. Jarva should obtain full-time employment, rather than the part-time employment which she recently took after her return from maternity leave. He submitted that I should impute full-time income to Ms. Jarva in determining spousal support. I decided, however, that spousal support should be based on Ms. Jarva’s present part-time work.
[8] Mr. Kunka did not dispute that if he were to have the children less than 40% of the time, he should pay Guideline support, and it was so ordered.
[9] Ms. Petryshyn points to the fact that there were many issues of importance to Mr. Kunka that were settled just before the motion was heard.
[10] She also notes that Mr. Kunka received an order for much more access than Ms. Jarva was initially willing to agree to.
[11] Ms. Petryshyn also observes that I denied Ms. Jarva’s request for a restraining order. I also awarded Mr. Kunka exclusive possession of the matrimonial home for a period of 60 days to allow him to attempt to finance the purchase of Ms. Jarva’s one-half interest in the home for a price that the parties had agreed upon.
[12] Ms. Petrysyn submits that the motion materials to which Mr. Kunka had to respond were not focussed and played no part in the discussions on custody, access and support.
Discussion
[13] The starting point in setting costs in family law matters is Rule 24(1):
“24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
[14] Rule 24(10) provides that promptly after each step in the case the court should decide who, if anyone, is entitled to costs and set the amount of costs.
[15] Rule 24(11) sets out the factors which must be considered in awarding costs:
(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.
[16] An 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.
[17] In C.A.M. v. D.M., 2003 18880 (ON CA), [2003] O.J. No. 3707 (C.A.) at para. 40, Rosenberg J. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act, but that they have not, however, completely removed the court’s discretion. I note that Rule 24(11)(f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act, there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[18] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[19] In Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.), at para. 4 the Court of Appeal did not make a specific finding with respect to the amount of time spent or the rates charged by counsel, and stated:
In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.
[20] While Boucher and Zesta Engineering are not family law cases, I accept that the principles enunciated above are applicable to family law matters.
[21] In my view, Ms. Jarva was the party who was primarily successful on the motions. The issues that occupied most of the time spent on motions were custody and access. She was also successful in her position that spousal support should be based on her present part-time employment. Her success was somewhat tempered by Mr. Kunka’s success in obtaining more access than Ms. Jarva had voluntarily agreed to, and by his success on the issues of exclusive possession and a restraining order.
[22] I take into consideration, as well, that just prior to the hearing of the motion, the parties settled certain issues raised in Mr. Kunka’s motion.
[23] I take into account that the unnecessary length of the materials filed on the motion would have required preparation time for which indemnification is not warranted.
[24] Each counsel spent roughly similar time on the file. Ms. Filipovic’s docketed hourly rate is $250.00. Ms. Petryshyn’s hourly rate is shown at $275.00. Ms. Filipovic has 17 years’ experience. Ms. Petryshyn has 26 years’ experience. Both counsel are senior family law practitioners. Their respective hourly rates are reasonable.
[25] There was nothing unusually complex about the motions, apart from the excessive length of the materials. The issues, however, particularly those of custody and access, were of importance.
[26] In my opinion, having regard to the factors discussed above and in the context of the particular facts of the case, including those matters on which Mr. Kunka was successful, it would be fair and reasonable to award Ms. Jarva costs of this motion in the sum of $2,000.00 for fees, plus H.S.T., and $48.51 for disbursements, inclusive of H.S.T.
[27] In view of the debts which Mr. Kunka faces, costs shall be payable upon sale or other disposition of the matrimonial home.
The Hon. Mr. Justice D. C. Shaw
Released: March 26, 2013
COURT FILE NO.: FS-12-0298
DATE: 2013-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laurette Eileen Jarva
Applicant
- and –
William Michael Kunka
Respondent
DECISION ON COSTS
Shaw J.
Released: March 26, 2013
/mrm