ONTARIO
SUPERIOR COURT OF JUSTICE
KINGSTON COURT FILE NO.: 396/11
DATE: 2013/04/05
BETWEEN:
JAMES HENNINGSEN
Applicant
– and –
SHANOA SMITH, HEATHER BREWER, RICHARD PATTERSON
Respondents
Douglas R. Haunts, for the Applicant
Stephen Zap, for the Respondent, Shanoa Smith
Anne-Marie Langan, for the Respondents, Heather Brewer and Richard Patterson
HEARD: By Written Submissions
DECISION ON COSTS
m. linhares de sousa j.
[1] I have received submissions on costs from the Applicant, James Henningsen, and the Respondents, Heather Brewer (Patterson) and Richard Patterson. The Respondent, Shanoa Smith, has elected to not serve and file submissions on costs.
[2] The sole issue before me on this four day trial was the issue of the custody of and access to the child Keegan Smith, born February 10, 2010. There is no question that in the result of this trial, the Applicant, Mr. James Henningsen, was substantially successful. He is presumptively entitled to his costs pursuant to Rule 24(1) of the Family Law Rules, O. Reg. 114/99.
[3] There is no evidence to conclude that Mr. Henningsen should be deprived of his entitlement to costs. In fact, all parties to this litigation conducted themselves throughout the litigation reasonably and cooperatively to make the final trial as efficient and expeditious as possible. There is no evidence of bad faith on the part of any party.
[4] With respect to the various offers to settle which were presented by the parties in this matter, Mr. Henningsen’s offers of May 22, 2012 and January 8, 2013 were very close to the trial results and should have been accepted. In light of the facts of this case, Ms. Smith’s insistence, in her offer of April 25, 2012, that her access be unsupervised, was unreasonable. The offer of Mr. and Ms. Patterson, dated January 29, 2013 is not close to what occurred at trial.
[5] With respect to the factors listed pursuant to Rule 24(11) of the Family Law Rules, there is no question that this matter was important to the parties. Given the number of parties it was somewhat complex and difficult. Counsel for Mr. Henningsen has not presented his actual bill or costs nor information about his hourly rate. His global figure for costs was some $18,529 and considering counsel’s experience and considering the type of litigation cannot be considered unreasonable. However, it is impossible to assess reasonableness of time or what portion of the costs may relate to pre-trial proceedings, the timeliness of offers to settle and any consideration that should be given for the fact that Mr. and Mrs. Patterson became involved in the proceedings well after the proceedings between Ms. Smith and Mr. Henningsen had already commenced. I might also add here that no other counsel has presented a bill of costs.
[6] It is evident that none of the parties could afford this litigation. After considering all of the factors already mentioned, I conclude that it would be unfair to Mr. Henningsen to not award him costs in this litigation given his success. Furthermore, he will also continue to provide financially for Keegan without any foreseeable assistance from Keegan’s mother. The costs claimed are not of such a magnitude that the other parties who engaged in this litigation could not have reasonably anticipated that such costs would be awarded to the unsuccessful party. (See Boucher v. Public Accountants Council for Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).
[7] I therefore order all three Respondents, in this matter to pay jointly and severally to Mr. Henningsen his costs that I fix in the amount of $10,000, payable within 60 days of this decision.
M. Linhares de Sousa J.
Released: April 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES HENNINGSEN
Applicant
– and –
SHANOA SMITH, HEATHER BREWER, RICHARD PATTERSON
Respondents
DECISION ON COSTS
M. Linhares de Sousa J.
Released: April 5, 2013