SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: 46460-12
Date: 2013-07-02

RE: Rachel Sherry Steep, Applicant

and

Christopher William Steep, Respondent

Before: The Honourable Mr. Justice G.A. Campbell

Counsel:
H. Caron, for the Applicant
D. Morneau, for the Respondent

ENDORSEMENT REGARDING

COSTS OF MOTION OF MAY 16, 2013

[1] The respondent’s motion at Tab 21 of the Continuing Record proceeded to be argued before me on May 16, 2013.

[2] Mr. Steep had earlier brought a motion at Tab 13 of the Continuing Record, dated October 16, 2012, returnable November 22, 2012. In response to that motion, the Applicant short-served her Notice of Motion, dated November 16, 2012, found at Tab 18 of the Continuing Record, which was also returnable on November 22, 2012. The respondent reacted thereto by then serving his extensive 70 paragraph responding Affidavit. It had seven large exhibits attached. Most of both of those motions were resolved, on consent, on the return date, mostly upon terms suggested by the Respondent in an Offer to Settle served the day before November 22, 2012.

[3] Four issues remained unresolved by the Consent Order made on November 22, 2012, namely:

(a) occupational rent;

(b) exclusive possession of the matrimonial home;

(c) sale of the matrimonial home; and

(d) appointment of the O.C.L.

[4] Those issues were adjourned without date, returnable on four days notice.

[5] The Consent Order of Whitten J. of November 22, 2012 makes no mention of costs. As provided by Rule 24(10), since costs shall be decided at (or immediately after) each step, any costs sustained by either party that relate to that November 22, 2012 step (the two motions) cannot form any part of this current determination.

[6] Counsel for the Respondent attributes fees, disbursements and taxes totalling $9,620.09 of the Applicant counsel’s Bill of Costs to that November 22, 2012 Order, and follow-up thereto.

[7] I accept his submissions in that regard. I disallow that amount from my consideration of costs for the May 16, 2013 motion.

[8] The Respondent included inter alia, as an issue to be argued in his Tab 21 Notice of Motion, his claim for the sale of the matrimonial home, previously adjourned, without date on November 22, 2012.

[9] The issues of the appointment of the O.C.L. and the respondent’s claim for occupation rent were not raised on May 16, 2013.

[10] Since the Applicant had had (and continued to have as at May 16, 2013) exclusive possession of the matrimonial home (in light of the Criminal Court prohibitions in place against Mr. Steep), it was a foregone conclusion that she would remain in exclusive possession of that property until she was able to comply with my order that she obtain a release of Mr. Steep from the mortgage on the home, within 30 days of May 16, 2013.

[11] I adjourned the issue of an accounting between the parties regarding their respective obligations to each other with regard to the line of credit, mortgage, credit cards, taxes, occupational rent (and the like) to a settlement conference to be set some time in the future.

[12] Counsel addressed and I decided (in short order) the Respondent’s claim for the return to him of his personal clothing, chattels, possessions and the like.

[13] Accordingly, there were technically two motions before me on May 16, 2013 (really one and some leftover parts of the two previous November 22, 2012 motions).

[14] The motions were not particularly complex, nor were they difficult to present or decide.

[15] In fact, Ms. Steep had long planned (and had been taking some time trying to put in place the paperwork) to “buy” the matrimonial home from Mr. Steep. The process seemed to Mr. Steep unduly (and perhaps intentionally) prolonged.

[16] Mr. Steep lost confidence in Ms. Steep’s bona fides and perceived that she was intentionally dragging out the process, especially when he also believed that she was blocking him from getting any of his clothes, his skates, his personal hockey mementoes, his guitar, dart board and the like (one remembers that he was arrested and taken from the home by the police and only had the clothes he wore at that time).

[17] Therefore, when Mr. Steep’s counsel seemed to be getting nowhere retrieving his clothes or finalizing the house ‘purchase’ by Ms. Steep, he brought the Tab 21 motion.

[18] He was well advised to do so. The motion broke the logjam. I gave Ms. Steep a fixed short time to “pull the trigger” on the mortgage release/home purchase issue and ordered her to immediately deliver to Mr. Steep his personal belongings, at a fixed date/time.

[19] Mr. Steep had been paying child support. I formalized that reality. On my own, I started the child support order on the date that Ms. Steep issued her Application, namely April 5, 2012, over a full year earlier.

[20] That surprise order addressed the retroactive child support issue in a (very) summary manner. There is case law that child support ordered on a temporary basis from the date of the initiation of an Application is not “retroactive” child support. Trial judges are better suited to decide whether there should be child support ordered from the date of separation to the date the proceeding is instituted, based upon evidence lead at trial. That consideration at trial will address true pre-Application retroactive child support.

[21] In order that I arrive at a fair and just conclusion, I am to view the issue of costs of a motion in a flexible and balanced way, recognizing the wide discretion afforded by r. 24 of the Family Law Rules, O. Reg. 114/99: Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). The quantum of costs to be paid must reflect the factors in r. 24(11), viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs incurred. Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[22] I am also required to make an assessment of a sensible and fair result, consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.)

[23] I have read and considered both counsel’s written submissions and all of the correspondence and offers (both formal and informal – see Rule 18(16)) that they have attached thereto. Of particular interest to me is Ms. Caron’s plea for settlement contained in her letter of May 9, 2013, some 10 days before the motion was argued. I have not been provided with Mr. Morneau’s response and must therefore conclude that there was none.

[24] I only have Mr. Morneau’s statement at paragraph 19 of his written submissions, that, in response to his client’s proposed Minutes of Settlement, sent April 19, 2013, Ms. Caron’s response of May 9, which contains almost three pages of proposed amendments to that draft and Minutes of Settlement … “were unreasonable and could not be met by the respondent … (since) … the respondent will not qualify for any further financial extensions or lines of credit.”

[25] Ms. Caron proposed mediation in her May 9, 2013 letter. Mediation may or may not have been less costly to the parties instead of having counsel prepare for and attend to argue the motions on May 16, 2013.

[26] In March 2013 alone, Ms. Steep has been charged over $3,500 for lawyer’s fees. April’s charges are about the same. Her fees charged in May (when the motion(s) were argued) total about $4,000. I expect that Mr. Steep is facing an account that is not so very different.

[27] Ms. Caron was quite correct when, in her letter of May 9th, she opined that “These parties need resolution … (and) … the parties have incurred significant expense to date”.

[28] In hindsight (which is always easier than the reality of the moment), the motion should (and could) have been avoided at all costs. The result was easily predictable.

[29] Ms. Steep got what she wanted; continued exclusive possession until she got Mr. Steep released from the mortgage and he transferred title to her. (but with a deadline set by the court by which time it all was to occur).

[30] Mr. Steep got what he wanted; an order for his possessions (worded almost exactly as offered by Ms. Caron in her May 9, 2013 letter) and a release of his mortgage obligation.

[31] An accounting was ordered at a settlement conference. (also suggested by Ms. Caron in that same letter)

[32] Ms. Steep got a formal order for child support which Mr. Steep knew he owed (from at least the year before) and which he had actually been paying for some time.

[33] Despite counsel’s best efforts, the May 16th attendance proceeded. I find that it was unnecessary, wasteful and almost entirely predictable.

[34] There was no clear winner arising from this motion(s). But, there certainly was an obvious loser. The Steep family, mother, father and children all “lost” in a very significant and irredeemable way. Money spent cannot be retrieved. Neither party can afford to pay the “other side” anything and any costs order that requires such a payment would clearly further deprive the girls from the benefit of their parents’ hard-earned income.

[35] Despite Ms. Caron’s submissions, I find that there was no “bad faith” or “unreasonable” behaviour by either party as intended by Rule 24(5) and (8) and the case law decided as a result thereof. (see S (C) v. S (M) 2007 20279 (ON SC), 2007 O.J. No. 2164, affirmed 2010 ONCA 196, 2010 O.J. No. 1064 (O.C.A.); and Buchanan v. Buchanan (2009), 2009 6831 (ON SC), O.J. No. 674; and Piskor v. Piskor (2004), 2004 5023 (ON SC), O.J. No. 796; and Hendry v. Martins (2001), O.J. No. 1098.

[36] But for Ms. Caron’s letter of May 9, 2013, I would order no costs to be paid by either party to the other. However, her letter was a clear and obvious open door for Mr. Steep (and his counsel) to respond to and to, at least, adjourn the impending motion while further negotiations could occur. That invitation was met with silence and can only be interpreted as having been rejected.

[37] Accordingly, a balanced and fair resolution of the costs issue is that there be a partial indemnity order for costs set in the amount of $2,000, inclusive of disbursements and HST payable by Mr. Steep to Ms. Steep and I so order.

G.A. Campbell J.

Released: July 2, 2013