ONTARIO SUPERIOR COURT OF JUSTICE

oshawa COURT FILE NO.: FC-11-1497-00

DATE: 2013-04-10

BETWEEN

Shawn Daniel Martin

Applicant

— and —

Anna Karoline Czarniecki

Respondent

COUNSEL:

J. Wilson and C. Hooper for the applicant.

R. Byrnes for the respondent.

HEARD: Written costs submissions.

Timms J.

COSTS ENDORSEMENT

[1] Although the respondent’s cost submissions were not “filed” in accordance with the terms of paragraph [130] of my judgment released January 7, 2013, they were nonetheless received on time. The applicant served and filed his submissions and his reply to the respondent’s submissions on time.

[2] The applicant seeks his costs on a full recovery basis for the trial amounting to $161,637.94, inclusive of disbursements and HST. The applicant also seeks full indemnity costs for two motions where the costs were reserved. Those motions were heard on September 10, 2010 and October 16, 2010 by Justice Corkery and Justice Kaufman respectively. The amount of costs sought for these two motions is $9,993.09, inclusive of HST.

[3] The basis for the request for full recovery of costs for the trial rests on the successful result achieved, and the application of the various criteria to be considered pursuant to rule 24 of the Family Law Rules.[1] Moreover, the applicant asserts that the provisions of subrule 18(14) apply, in that the terms relating to custody and access of his offer dated October 19, 2012, which were severable from the rest of the offer, were as favourable or more favourable than the outcome at trial. The respondent did not accept this offer.

[4] The applicant also submits that nothing in his behaviour could be deemed unreasonable, as opposed to the respondent’s behaviour which was arguably unreasonable.

[5] The respondent appears to understand that there will be a costs award against her. She did not suggest an appropriate amount. Primarily, the respondent argues that her financial circumstances are such that she cannot afford to pay substantial costs. No case law was cited in favour of that proposition. As well, her position is that her behaviour was not unreasonable as she was always fighting for the best interests of her child.

[6] It is clear that the applicant was successful on the issues of custody and access (including mobility) however measured. The ten days of actual trial evidence dealt exclusively with those issues. It is likewise clear that the applicant’s offer of October 19, 2012 fits all of the criteria set out in subrule 18(14).

[7] As is presumably evident from my reasons for judgment, I agree that the behaviour of the applicant cannot be deemed unreasonable such that any costs award in his favour should be diminished. I also agree that the same cannot be said of the respondent. Numerous paragraphs of my reasons for judgment touch on that issue. I include her behaviour in Germany as referenced in paragraph [117] of my reasons for judgment. In addition, as pointed out more than once in my reasons for judgment, considerable time was wasted at the trial on an issue that was essentially moot – whether there had been an agreement that the family would move permanently to Germany. As well, the trial was unnecessarily lengthened by the exhaustive cross-examination of the applicant on the hundreds of emails and text messages – see paragraph [58] of my reasons for judgment. That cross-examination achieved little to advance the case or help me to determine the best interests’ of the child Max.

[8] There is one problem with the applicant’s bill of costs. Although it is extremely detailed, it does not break out the issues of custody and access from any financial issues, including support and net family property. The bill of cost does reference matters such as the preparation and review of financial statements but does not separate them. I did not deal with any financial issues at the trial, except in the limited manner as per paragraph [127] of my reasons for judgment. Without the proper information, I can do no better than to guess as to what is an appropriate reduction. With that in mind, I am going to apply a five percent reduction to the amount claimed up to the eve of the trial. Admittedly this is an arbitrary reduction, but it is the best I can do in the circumstances. Given what I have ultimately determined, this percentage reduction is not that material in any event.

[9] The respondent brought a motion returnable on September 10, 2012, seeking to change the existing access arrangements and for disclosure from the applicant. At that time, the disclosure meeting with the Office of the Children’s Lawyer (“OCL”) investigator had yet to occur. After that meeting, the applicant served an offer in the terms ultimately recommended by the OCL investigator. That offer was not accepted by the respondent who served no offer of her own.

[10] On September 10, 2012, most of the disclosure issues were resolved on consent. The balance of the disclosure sought by the respondent and the issue of access were adjourned by Justice Corkery to October 16, 2012, a date after the OCL disclosure meeting. The applicant then served a second offer to settle on the respondent who did not accept it and who did not serve her own offer.

[11] On October 16, 2012, Justice Kaufman dismissed the respondent’s motion regarding a change of access. The remaining aspects of the disclosure motion were resolved or dismissed.

[12] As I said above in paragraph [2], both Justice Corkery and Justice Kaufman reserved costs. In reserving costs as they did, both judges were not acting in accordance with subrule 24(10) which sets out that:

Promptly after each step in the case the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs and set the amount of costs.

It has long been my practice to decline to deal with costs reserved contrary to this subrule. I see no reason to depart from that practice. If either judge felt that costs were deserved for any aspect of the motions heard by them, they had the opportunity to fix them. Beyond that, having reviewed the arguments of the parties and the applicant’s offers, I am not convinced that costs should flow in any event.

[13] As I said above in paragraph [5], the respondent primarily relies upon her inability to pay what otherwise would be substantial costs. There are a number of cases dealing with this. In M. (A. C.) v. M. (D.),[2] our Court of Appeal clarified that the financial situation of the parties can be taken into account in setting the amount of costs awarded either under rule 24 or under rule 18. Similarly our Court of Appeal said in Serra v. Serra, said that flexibility was required in examining the list of factors set out in subrule 24(11).[3] Although these rules were a departure from the previous case law which afforded the judiciary a much broader discretion, nonetheless both rules contain language that does allow the court to exercise discretion with respect to a party’s financial circumstances and other factors.

[14] In his reply to the respondent’s costs submissions, the applicant cites a number of cases, the essence of which is that an inability to pay is not a shield against costs being awarded and that it is a factor which should be given less prominence than the presumption that costs should follow success.[4] None of these are Court of Appeal cases, except for the Wylie v. Leclair decision.[5]

[15] The synthesis of these cases is that a party’s ability to pay is certainly not a bar to a costs award but may serve to reduce costs. It is a discretion structuring factor but not the preeminent one.

[16] In this case, the respondent apparently has a very limited ability to pay costs. I say “apparently” because I never saw a financial statement from the respondent and I heard no evidence as to what assets she might have. Based on the evidence I did hear, it is unlikely that she has any substantial assets. She rents an apartment and was on social assistance in Germany prior to returning to Canada in early 2012. Her evidence as to her income after her probable return to Germany was that she should earn between 1,300 and 1,500 Euros a month. I do know that she has not paid the costs awarded against her in Germany or the costs previously awarded against her by me on a 14B motion on October 25, 2012. Eventually, one way or another, the respondent will be paying some amount for child support, although that might more be a factor as to how much she can pay monthly towards costs.

[17] Keeping in mind all of the factors and circumstances of this case, including the applicant’s success, the respondent’s conduct, and the respondent’s financial circumstances, it is my conclusion that a costs award against the respondent in the amount of $105,000.00, inclusive of disbursements and HST, is fair and reasonable. I so order.

The Honourable Mr. Justice D. Roger Timms

DATE RELEASED: Wednesday, April 10, 2013.

[^1]: Family Law Rules, O. Reg. 114/99

[^2]: M.(A.C.) v. M.(D.), 2003 18880 (ON CA), [2003] 67 O.R. (3d) 181, 43 R.F.L. 5th 149, 176 O.A.C. 201, O.J. No. 3707, 2003 18880, (Ont. C.A.).

[^3]: Serra v. Serra, 2009 ONCA 105; [2009] 93 O.R. (3d) 161; 61 R.F.L. (6th) 1; 245 O.A.C. 37; 307 D.L.R. (4th) 1; 2009 CarswellOnt 513 (Ont. C.A.).

[^4]: R.B. v. J.W., 2012 ONCJ 799, [2012] O.J. No. 6269 (O.C.J.); Biant v. Sagoo, 2001 28137 (ON SC), [2001] 20 R.F.L. (5th) 284 (Ont. S.C.J.); LeVan v. LeVan, 2006 63733 (ON SC), [2006] 82 O.R. (3d) 1 at 76, 32 R.F.L. (6th) 359 2006 CarswellOnt 7334 (Ont. C.J.); Katarzynski v. Katarzynski, 2012 ONCJ 393, [2012] O.J. No. 2940 (Ont. C.J.).

[^5]: Wylie v. Leclair, 2003 49737 (ON CA), [2003] 38 R.F.L. (5th) 227, 64 O.R. (3d) 782, 2003 CaswellOnt 1966 (Ont. C.A.).