ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-2622
DATE: 2014-03-13
BETWEEN:
ROMAINE THOMPSON
Applicant
– and –
LYNN MURPHY
Respondent
Self- represented.
Martin Kenny, for the Respondent.
HEARD: In writing
Costs Decision
T.D. RAY, J
[1] Following the four day trial of this matter, I gave my decision June 4, 2013 (2013 ONSC 3197), and invited written submissions concerning certain calculations. I received written comments from the applicant and the respondent but no reply from the applicant, although, he was reminded after considerable delay. My final decision was released December 19, 2013 (2013 ONSC 4611) and I reminded the parties of needing their costs submissions if they were unable to agree.
[2] I have received a letter and costs submissions from the respondent. In his letter, he states that he received a telephone call from the applicant but suggested he, the applicant, correspond his costs submissions or position in writing, electronically if he wished, but heard nothing further. After a further reminder and no response, he forwarded his costs submissions to me with a copy to the applicant both by mail and electronically. I have no written submissions from the applicant even though they were requested in my decision of June 4, 2013, with a reminder again in my decision of December 19, 2013.
[3] The respondent’s position is that he exceeded his written offer by virtue of my order and therefore, is not only entitled to his costs, but costs on an enhanced basis. The respondent’s written offer is dated May 10, 2013 and addressed custody, access, child support section 7 expenses, and arrears. I am satisfied from a review of the offer to settle, and my order, that the respondent’s offer was in substantial agreement with or bettered my order, thereby entitling the respondent to enhanced costs from May 10, 2013, the date of the offer. The form of the offer appears to be in compliance with the rules.
[4] The respondent claims the applicant’s conduct of this litigation must be taken into account in assessing costs. He claims correctly that the applicant failed to file a financial statement in an accepted form. He also incorrectly claims the applicant had falsely stated he had been tricked into moving back to Nova Scotia. This issue occupied a good deal of evidence but was not unreasonably raised by the applicant. I did not find that the applicant’s move back to Nova Scotia was unreasonable nor did I find anyone tricked anyone. The move coincided with increasing estrangement between the parties. I do not consider the applicant’s conduct otherwise to have been unreasonable or improper for a parent who was trying to achieve what he considered the best outcome for his son. While he may have been wrong, he was not unreasonable.
[5] The respondent seeks costs of $22,991.00 most of which is for costs following the written offer of May 10, 2013 on a full indemnity basis. Rule 24 of the Family Law Rules O. Reg. 114/99 provides that a successful party is presumptively entitled to their costs. I am satisfied that as the successful party the respondent is entitled to her costs. The factors to be considered in assessing the costs are set out in Rule (11) of the Family Law Rules. I consider that, in assessing the costs, I should also have regard to the principles of proportionality and the amount an unsuccessful party would expect to pay.[^1]
[6] There were no complex matters at issue; however the issues were important to the parties. The applicant did not file an up-to-date financial statement, and failed to lead evidence on a number of matters that I managed to deal with by requesting written submissions. Most importantly, the respondent obtained a result as good as or better than her written offer. The respondent’s solicitor was helpful to the applicant and to the court as one would expect with a self-represented party opposite. In this case, I consider $15,000 to be the amount of costs that reflects the proportionality principle as well as what the applicant would likely have expected to pay, if he had known he would be unsuccessful. While he has a good income, he also had significant obligations.
[7] I do not consider that this case was about child support. The other issues were far more important to the parties and required more time and attention. As a consequence, I will not order that this costs order be enforceable through FRO.
[8] In conclusion, I find the respondent is entitled to her costs fixed at $15,000.00.
Honourable Justice Timothy Ray
Released: March 13, 2014
COURT FILE NO.: FC-11-2622
DATE: 2014-03-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROMAINE THOMPSON
Applicant
– and –
LYNN MURPHY
Respondent
Costs reasons
Honourable Justice Timothy Ray
Released: March 13, 2013
[^1]: Rule 57, Civil Rules of Procedure.