SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-11-0023-00
DATE: 20130403

RE: JANET KELPIN, Applicant

AND:

KAITLIN KELPIN and JEFFERY FULFORD, Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL:
A. Pengelley, for the Applicant

L. Paterson Kelly for the Respondent, Kaitlin Kelpin

B. Lynn as agent for the Respondent, Jeffrey Fulford

HEARD: By written submissions

COSTS ENDORSEMENT

[1] On January 3, 2013, I heard a motion and a cross motion; the motion was brought by the Applicant, Janet Kelpin (“Janet”), who is the maternal grandmother of the child; she also presently has temporary custody of the child, Gavin Fulford who is five. The motion was for an order changing the supervisor of Jeffrey Fulford’s access from his mother to the Simcoe County Supervised Access Centre. Upon obtaining counsel, the Respondent, Kaitlin Kelpin (“Kaitlin”) brought a cross motion for unsupervised access.

[2] Largely because a similar motion had been brought by the Applicant in October, 2012 for relief similar to that sought in on January 3, 2013, the Applicant’s motion was dismissed. Over Janet’s objections, Kaitlin obtained an order that unsupervised staged access granted under an earlier order commence on January 24, 2013.

[3] Both Respondents now request costs based upon the results of the motion. The Applicant requests costs from both Respondents based upon unreasonable conduct or bad faith.

[4] I will review the costs issues motion by motion.

Costs Regarding Applicant’s Motion Against Mr. Fulford

[5] In her motion, the Applicant sought to further restrict access which was agreed to, on consent, in October, 2012, barely two months before this motion was argued. Although the material filed by Mr. Fulford was noted as being deficient, this did not, in the result, make any material difference; the Applicant’s motion was dismissed largely because the material concentrated on adult issues between the parties, and failed to address maximizing the contact between the child and Mr. Fulford. Moreover, there had been barely two months between this motion and the October motion, also brought with the intent to restrict access to Mr. Fulford.

[6] In considering costs, under Rule 24(1) of the Family Law Rules,[^1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “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 signature of the order.”

[7] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs.

[8] Normally in this case, costs would follow Mr. Fulford’s success on the motion. Ms. Pengelley states, however, that there was misconduct committed by Mr. Fulford which would warrant a costs award against him or at least would displace the presumption that the successful party is entitled to costs. She notes that Mr. Fulford has been non-compliant in providing his drug screening and that he had failed to provide the four weekly urine screening tests for alcohol and marijuana as ordered on October 26, 2011. She notes that his material on the motion was deficient and he was late in providing financial disclosure; he had also failed to provide his current residential address. She cites previous court orders for costs and resultant delays in the proceedings. Ms. Pengelley states that Mr. Fulford’s misconduct has prevented the Applicant from moving “towards any meaningful resolution of the issues.”

[9] Although Ms. Pengelley complained in her material about “bad faith” this is distinct from unreasonable conduct under Rule 24(11); it involves a level of malice not seen in this case: see S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (Ont.S.C.J.) and Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.). I am accordingly examining the actions of the parties from the perspective of unreasonable conduct rather than bad faith which I do not find to be present in this matter.

[10] Ms. Pengelley has recited a litany of complaints regarding Mr. Fulford’s conduct in this proceeding. Some have to do with previous court days where Mr. Fulford was unprepared; those issues are for the justice hearing those events and not myself: see Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416 (C.A.). In fact, there was an earlier award of costs against Mr. Fulford which remains outstanding. There were other conduct issues mentioned, including delays in providing drug and alcohol screening, paying costs or providing financial disclosure. These complaints may very well constitute unreasonable behaviour within the meaning of Rule 24(11) but I am not assessing costs of the proceeding as a whole; I am assessing costs of this particular motion. The issue on this motion was whether there was a change in circumstances since the motion returnable October 24, 2012 which would warrant a variation in that order; I found that there was no such change in circumstances, and the evidence provided by the Applicant did not warrant a variation in access as agreed to by the parties on that date. The misconduct alleged by the Applicant did not relate to those issues; in fact one might say that to bring a motion just over two months after the order in question without a major and compelling change in circumstances constituted unreasonable conduct in itself.

[11] As such, I do not find that Mr. Fulford’s conduct displaces the presumption that the successful party on this motion is entitled to his costs. As such, Mr. Fulford is entitled to his costs of this motion.

[12] However, it is correct that the material filed by Mr. Fulford was deficient to say in the least. His arrangement to not retain counsel but to have Mr. Lynn appear on an event by event basis also affects costs as there is no one for Ms. Pengelley to negotiate with until the parties arrive in court; this also affects the actual costs incurred by Mr. Fulford.

[13] Mr. Fulford has requested costs of $2,187.50 which appears to be a claim for full recovery costs for the day in court and preparation of materials. This is something rarely ordered, especially where there has been no offers to settle exchanged and where the material was deficient and of little assistance: see Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.).

[14] Accordingly, Mr. Fulford shall have his costs of this motion fixed on a partial indemnity basis in the amount of $750, payable as set out below.

Costs for Kaitlin’s Motion for Unsupervised Access

[15] Again, Janet was unsuccessful in the result of this motion; she resisted the access to Kaitlin graduating to unsupervised access even though she acknowledged that Kaitlin had complied with the October, 2011 order which required certain drug screening to be completed by Kaitlin. Kaitlin enjoyed success in the result of her motion and is presumably entitled to her costs.

[16] Again, Ms. Pengelley relies upon Kaitlin’s conduct in resisting an award for the costs of her motion. And again, as with Mr. Fulford’s motion, most of the misconduct is in respect of issues not related to this particular motion. The misconduct complained of is with regard to previous court appearances and delays in providing the results of drug testing. Regarding the former, as with the previous motion discussed above, the previous dates were for the presiding judges at those events to deal with; regarding the latter, the delays in providing the drug screening tests delayed Kaitlin’s unsupervised access to Gavin. The former are not related to this motion; the latter has only prejudiced and delayed Kaitlin’s normalized access to Gavin, something which the Applicant resisted in any event.

[17] The only other issue mentioned by Ms. Pengelley was the failure of Kaitlin to file materials in support of the motion on a timely fashion; this late filing was, however, consented to by Janet and she cannot now complain about that. As well, Ms. Pengelley says that Kaitlin should not have changed her mind about her claim for custody; again that may affect Kaitlin’s claim for costs in the main action, but I can hardly see how that is related to Kaitlin’s motion for access.

[18] Accordingly, as with Mr. Fulford, I decline to find unreasonable conduct on the part of Kaitlin. Kaitlin was successful on her motion and the presumption of costs following the event is not displaced. Kaitlin is entitled to an award of costs for her motion.

[19] Kaitlin’s counsel did not file a Bill of Costs and I presume that there were no offers to settle exchanged. Kaitlin shall have her costs on a partial indemnity basis. Although she claims substantial indemnity costs through alleging that the Applicant failed to properly negotiate with her, that refusal, if any, may have been affected by Kaitlin’s change of heart regarding custody which would obviously make negotiations more difficult on related matters such as access.

[20] Kaitlin claims costs of $2,486 inclusive of HST and disbursements. I do not find the hourly rate unreasonable, but there is no bill of costs or breakdown of how those costs were calculated other than what is set out in paragraph 14 of Kaitlin’s costs submissions. Kaitlin shall have her costs of her motion for access in the amount of $1,500 inclusive of HST and disbursements.

Payment of Costs

[21] Mr. Fulford says he has paid his share of the costs award of Mullins J. dated August 30, 2012. Accordingly the Applicant shall pay Mr. Fulford’s costs in the amount of $700 within 60 days of today’s date.

[22] Kaitlin has not paid her share of the Mullins J. costs according to the material before me. Accordingly her costs award for this motion is set off against what remains owing of her share of that costs award. The remaining amount owing after that set off is payable within 60 days of today’s date.

McDERMOT J.

Date: April 3, 2013

[^1]: O. Reg. 114/99