CITATION: Lares v. Fleury, 2013 ONSC 7427

COURT FILE NO.: 48249-13

DATE: 2013-12-02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Natalia Andrea Lares, Applicant

and

Andre Christopher Fleury, Respondent

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Charles Morrison, for the Applicant Glenda McLeod, for the Respondent

RULING ON COSTS

[1] This bitterly contested matrimonial dispute came before me in the form of a long motion in Kitchener on October 23, 2013.

[2] The primary issue is one of custody of the two children. I do not intend to repeat the reasons I gave orally at the conclusion of the motion, save to repeat that in my estimation, neither of these parties are to be overly proud of their behaviour or the effect it has had on the children.

[3] There is obviously great animosity as between the two parties, and regrettably, as between their counsel.

[4] The matter has been before the courts four times in less than a month. The first time on an ex parte motion brought by the applicant wife, then on the second occasion on the return of that motion on notice, then in the form of a case conference, and lastly the October 23rd appearance before me. My order dismissed all the claims of the applicant, and set aside the previous orders she had obtained beginning with the ex parte order.

[5] In summary, the respondent’s position is that the behaviour of the applicant and her counsel throughout have been unreasonable and promoted additional hostility and increased the legal expenses unnecessarily. He claims costs on a full recovery basis in the total amount of $11,840 for fees, total disbursements of $259, and total H.S.T. in the amount of $1,572.87, for a total of $13,671.87. His counsel invites the court to order the applicant’s counsel to be found responsible for the costs.

[6] The respondent’s counsel makes a claim for hourly payment of $350 for herself and payment of $100 an hour for law clerks. These do not seem to be out of the current range given the experience of counsel.

[7] The applicant’s position is that there should be no order as to costs; or alternatively, an order for costs in favour of the respondent, but in the cause; or alternatively, modest costs of $3,000, and that any costs award should be ordered paid out of the proceeds of the sale of the matrimonial home.

[8] I do not intend to repeat all the submissions on costs made by each counsel, as in their costs submissions they have continued on the disagreement as to underlying facts that permeated the hearing before me.

[9] I take into account the fact that the costs claimed by the respondent seem to include costs for all four matters that have come before the court in connection with this file. The three Justices who dealt with the matter before me did not see fit to make any order as to costs, nor to reserve the costs to me. As far as I am concerned, I have no authority to award costs in respect of those appearances and I reject the respondent’s submission that any of them did not form a “step” in the action and hence can be rolled into a costs order in respect of the appearance before me.

[10] The applicant made an offer to settle, at the close of business prior to the hearing of the motion before me, but that offer contained essentially a reassertion of the applicant’s position throughout and offered little by way of concession. The respondent served an offer to settle shortly after 5:00 p.m. the day before argument of the motion offering a number of concessions, including as an alternative position, the shared custody arrangement that essentially mirrored the eventual order I made. The applicant takes great issue with the respondent’s offer to settle as it was not signed by both counsel and the respondent, and it was served shortly after 5:00 p.m. While not meaning to suggest that the requirements of the Rules are unimportant, I also observe that still does not preclude responsible counsel from picking up the phone and discussing the contents of offers to settle so as to see if the matter can be resolved without the added expense to the parties of the contested proceedings that ensued the next day.

[11] The applicant points to the requirement that costs be fixed in a way that is “fair and reasonable” taking into account proportionality and access to justice and relies on the well known case of Boucher v. Public Accountant (2004), CarswellOnt. 2521 at paras. 24 – 29. She further relies on Shea v. Fraser (2007) CarswellOnt. 1772 (C.A.) at para. 49 to support the proposition that the comparatively modest resources available to these parties cannot support comparatively high costs awards. Of course, the ability of the two parties to pay court costs, and their own legal fees relating to the action, are factors that both sides would be best advised to consider carefully before choosing to appear four times in court on an interim matter, and in flooding the issues with mutual barrages of allegations and counter-allegations which they ought to know, or ought to be told, can’t possibly be resolved on a meaningful basis without at least cross-examinations, if not trials.

[12] As noted by the Court of Appeal in Serra v. Serra (2009), CarswellOnt. 2475 at para. 8:

Modern costs rules are designed to foster three fundamental purposes:

(1) partially indemnify successful litigants for the costs of litigation;

(2) encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont.C.A.), at para. 222.

[13] In my opinion, the respondent was successful and the applicant was wholly unsuccessful. The award of costs that I make ought to signal to these two parties that they would be well advised to make greater effort to discuss and resolve their differences, or at least some of the issues before proceeding with this regularity to court. I think it also appropriate to take into account that two of the four appearances before the court were, in my assessment, inappropriate in the circumstances of this case.

[14] Taking into account the amount of time spent by respondent’s counsel in respect of the motion before me, as opposed to being spent in respect of prior appearances, I fix the amount of costs payable to the respondent in the amount of $4,000 for fees, $259 for disbursements, plus applicable H.S.T. on both.

[15] With respect to the submission that the costs ought to be ordered payable by the applicant’s counsel, I disagree. I rely upon the guidance offered in Carleton v. Beaverton Hotel, (2009) CarswellOnt. 6303 at paras. 14 and 15. In the absence of evidence to the contrary, in my opinion, it must be assumed that counsel gave appropriate advice to the client as to the options available, their chances of success, the potential liability for payment of legal costs, including the appropriate estimate as to the amount of time that would be required in pursuit of the various options. If having been so advised the client chooses to instruct the lawyer to pursue the more aggressive and costly alternatives, then that is the client’s problem.

[16] Similarly I reject the submission that the payment of a cost order should be delayed so as to come out of the proceeds of the matrimonial home. To so order would benefit the applicant. But it would be detrimental to the respondent who is entitled to payment of the costs as partial indemnity for the legal expenses he has incurred. The longer she is given to pay, the longer he has to do without. He succeeded on the motion.

[17] For these reasons, I fix the costs in the aforementioned amounts payable by the applicant to the respondent within 30 days.

C.S. Glithero J.

Released: December 2, 2013