COURT FILE AND PARTIES

COURT FILE NO.: FS-56/11
DATE: 2013-09-20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sarah Elizabeth Mason, Applicant

and

Hayden Wade Smissen, Respondent

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

COUNSEL:
M. Scholz, for the Applicant
B. Cafengiu, for the Respondent

ENDORSEMENT ON COSTS

[1] These four motions were argued before me on June 13, 2013. Kitchener counsel for the Respondent billed his client for 4 ½ hours to attend that event. Hamilton counsel for the applicant billed for just over two hours travel time over that amount to attend. That is a very reasonable allocation of time for travel. Effectively, the long motion in Kitchener consumed nine hours of her billable time.

[2] Ms. Scholz also needed to attend Kitchener for the Case Conference on May 14, 2012 (only 5.8 hours) and again on March 14, 2013 when Taylor J. reserved costs of that day to “the motions judge”. (allow 3.5 hours)

[3] Ms. Scholz seeks a costs order of $31,318.34 as full indemnity for “all time spent on the case” from initial contact by e-mail on May 4, 2011 until her return to Hamilton after the argument on June 13, 2013.

[4] Since Case Conferences are mandatory and neither party’s motion(s) could proceed until such a ‘step’ had occurred, my view is that no specific endorsement need be sought from (nor made by) the presiding Justice that costs of that step would be “in the cause”, despite the mandate of Rule 24(10).

[5] There now exists ample authority that I am to view the issue of costs of this motion in a flexible and balance 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.) Ms. Scholz’s client is entitled to her costs, but the quantum 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: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[6] 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.).

[7] In my oral reasons for my decision and my endorsement of that date, I was pointedly critical of the Respondent’s strategy and tactics regarding his approach to this round of litigation. He did not comply with the disclosure ordered by Hambly J. (made well over a year before the motions were argued) nor would he concede confirmation of the Washington State Order or withdraw his entirely unreasonable demand for unsupervised access to Sophie (whom he hadn’t seen for years) until during his counsel’s submissions (and even then only when challenged directly by the court).

[8] As a result of Mr. Smissen’s egocentric approach to these motions, Ms. Mason was forced to have her counsel unnecessarily (over) prepare a large Case-Law Brief, her Factum, spend many hours researching the law and preparing her submissions in several areas. Mr. Smisson precipitated that wasted effort by his intractable approach to the issues, despite the Applicant’s willingness to accommodate his demands in a manner that would protect Sophie from the trauma of changing her world from no contact with her father for years, to a gradual re-introduction to her absent father.

[9] It ill behoves the Respondent to now object to the amount of time, effort and money that has been expended by the Applicant to try to formalize some reasonable arrangements between two disparate jurisdictions for a renewed relationship with his daughter, after such a passage of time (and especially given his personal history).

[10] It is now long well-established “best practice” that every litigant, in every case should make a Rule 18 Offer to Settle. Even though the rule is not mandatory, the Respondent chose to ignore the expectation that, despite his formal motion request for immediate unsupervised access, he would offer to accept some form of “stepped” re-introduction to a regime of ever-increasing contact with Sophie.

[11] Although the Applicant did not achieve every head of relief that she sought in her motions (e.g. striking the Respondent’s pleadings and/or dismissing his proceeding) as counsel observes in her written submissions, the manner in which I crafted the order effectively attained her goal. As Ms. Scholz submits ... “There are no further hearing dates scheduled or anticipated”. This is to say that, until Mr. Smissen complies with a now increased list of court-ordered disclosure and costs, his access to the court process here in this jurisdiction faces serious impediments.

[12] Despite the able and thorough written costs submissions by counsel for the Respondent, I am not persuaded that Mr. Smissen is as impecunious as he tries to present (especially in light of his quit-claiming his house to Ms. Zehr well after these proceedings were started). I also accept and adopt the reasons for Ms. Scholz’s scepticism of Mr. Smissen’s “math” and his plea of poverty that “a cost order in the amount sought by the Applicant would severely impact (his) ability to financially provide for ...” another of his children, and ... “would, in effect, prohibit (him) from continuing forward with this proceeding”. The Respondent is the author of the costs predicament into which he placed himself.

[13] These motions were “important” (see Rule 24(11)(a)) to both parties and especially to Sophie. However, they were not complex nor difficult.

[14] The challenge I face however is in determining the quantum of the order for costs.

[15] Mr. Cafengiu rightly disclosed to me his account to his client. He was retained two months after Ms. Scholz (May 4, 2011 v. July 29, 2011) and his hourly rate is less than ½ of Ms. Scholz’s. She has practised for a decade longer than he has and rightly can (and should) charge clients more per hour for her experience and expertise. Despite that difference however, her account is almost four times his. That divergence is startling and caused me to vet Ms. Sholz’s account in detail.

[16] While I recognize that some clients are more demanding (or more “needy”) of attention than are others, the hours and hours of “receipt and review” of e-mail and correspondence repeatedly claimed in her bill to Ms. Mason is both astonishing and excessive.

[17] Mr. Smissen would not expect, nor should he be required to pay for such an intense and extraordinary level of attention to this matter by the Applicant’s counsel.

[18] After examining the factors set out in Rule 24(11) and applying them to the circumstances, positions, offers and tactics of this proceeding and using the “flexible v.s. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung 2005 42254 (ONSC) Blishen J. and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, 2004 14579 (ON CA), [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order to recognize the Applicant’s success is $15,000, inclusive of recoverable disbursements and HST.

[19] These motions did not focus at all upon the issue of child support. Despite my sympathy to the Applicant regarding what I expect will represent an unenforceable costs order, I am unwilling to designate my June 13, 2013 order an enforceable support order as provided in s. 1(1)(g) of the Family Responsibility and Enforcement Authority Act, S.O. 1996, c. 31 and addressed in the case of Sordi v. Sordi, 2011 ONCA 665, [2011] O.J. No. 4681.

G.A. Campbell J.

Released: September 20, 2013