ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 374/07
Date: 2013/09/09

Between:

SARAH MAY McALLISTER CHEVRIER

Paul A. MacLeod, for the Applicant

Applicant

• and -

SEAN JAMES MULGRUE

Lucienne MacLauchlan, for the Respondent

Respondent

MacPherson J.

COSTS ENDORSEMENT

1On June 19 and 20, 2013 the Court heard a Contempt motion brought by the Respondent, Sean Mulgrue. On June 20, 2013, oral reasons were given and the Applicant was found to have been in contempt of the Order of Justice Quinn dated April 30, 2008 in failing to deliver the child, Elizabeth, for access on the weekend of February 16, 2013.

2Counsel were invited to make written submissions on costs and I have now had the benefit of reviewing those submissions.

3The Respondent was the successful party. He is seeking costs on a full indemnity basis in the amount of $12,313.51 comprised of fees inclusive of HST in the amount of $12,011.90 and disbursements inclusive of HST in the amount of $301.61.

4The Applicant submits that the costs that should be awarded would be $2,000.00, inclusive of fees, disbursements and HST.

5I have reviewed the Bill of Costs of the Applicant. The total time spent on this matter was shown in the dockets as 46.9 hours. Included in this time was travel time of 8 hours which is justified as the Respondent resides in Napanee, which is also where his solicitor practices, with the proceeding being heard in St. Catharines.

6In his submissions, counsel for the Applicant suggested that 8.15 hours was the time that he had expended on the Contempt Motion, but this did not include any time for the attendances on June 19 and June 20, 2013, which according to the dockets of the Respondent’s solicitor suggested an additional 12 hours. Having reviewed the Court records, this appears to be excessive and was more accurately 9 hours.

7While I have no doubt that this was a very important matter to the Respondent and I accept, based on the evidence of other times that access did not occur, that he did not immediately proceed to court each time that the order was not followed, after reviewing the dockets and considering that this was neither a factually nor legally complicated matter, the time spent of 38.9 hours is excessive in all of the circumstances.

8Based on the year of call of the Respondent’s solicitor, I have no difficulty in finding that an hourly rate of $250.00 per hour to be appropriate. However, travel time is more appropriate at a rate of $125.00 per hour.

9I must also consider the principles set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont C.A.) and am mindful that it is not simply a mathematical calculation of the time properly spent multiplied by the lawyer’s hourly rate, but must reflect what is a fair and reasonable amount to be paid by an unsuccessful party.

10In this case, the Applicant must have been aware that if she disobeyed a Court order that provided for access, there would be consequences for those actions. There had been a previous finding of contempt as against the Applicant in 2005 and she was ordered to pay costs in the amount of $3,500.00. While this was ultimately set off against child support that was owed by the Respondent, nevertheless it should come as no surprise to the Applicant, that if she chose once again to withhold access and she was not justified in doing so, that there would be a finding of contempt and cost consequences.

11While the Applicant’s counsel submitted that the Applicant had acted reasonably and was justified in what she had done, referencing subsequent negotiated and court ordered access, inherent in my reasons and in making a contempt finding was that the Applicant was not justified in withholding access.

12Taking all of the above into consideration, including the provisions of Rule 24 of the Family Law Rules, the Applicant shall pay costs to the Respondent in the amount of $6,000.00.

MacPherson J.