SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 33/13
DATE: 2014/06/30

RE: TIMOTHY SHEPHEN CHARLES ALBL, Applicant

AND:

PENNY JUNE SHURR-GREGG, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
Richard A. Wellenreiter, for the Applicant

Birkin J. Culp, for the Respondent

costs ENDORSEMENT

[1] The parties have now delivered their written submissions on costs of the motion as directed in my Endorsement of May 23, 2014. Following is my disposition on the question of costs.

Positions of the Parties

[2] The applicant father seeks substantial indemnity costs on the basis that he was entirely successful on the motion and that the respondent mother acted unreasonably in failing or refusing to respond to numerous requests, through counsel, for access to the child and frustrated the carrying out of the clinical investigation by the Office of the Children's Lawyer, both with respect to the filing and review of the intake forms, as well as the actual investigation undertaken. The applicant seeks costs on a substantial indemnity basis, representing 80% of his full actual costs, in the sum of $9,802.43, with the fee component comprising $7,262 made up of lawyer's time of 15.4 hours at $400 per hour and 11.6 hours of law clerk time at $95 per hour.

[3] The respondent acknowledges the applicant's entitlement to an award of costs but argues that the amount claimed for costs by the applicant is excessive. He argues that only the time spent on the motion from March 12, 2014 onwards should be considered, there was excessive time spent to "complete motion material", for "preparation time" and for travel time on the date of the argument, and that the impecuniosity of the respondent should be considered. The respondent argues as well that the disbursement in the sum of $1,250 for the report of Lourdes Geraldo is not properly compensable as it is not exclusively relied on for the motion but will be used at the trial or any interim variation hearings.

[4] The respondent also argues that any costs ordered to be paid should be offset against the child support obligation of the applicant which has not yet been determined.

Guiding Principles

[5] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see C.A.M. v. D.M. 2003 18880 (ON CA), (2003), 67 O.R. (3d) 181 (C.A.) at para 42).

[6] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 (SCJ)). In the case of Johanns v. Fulford 2010 ONCJ at para. 13, it was held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan (1999) O.J. No. 3707 (CA) at para. 24).

[8] While the case law requires the Court to consider the means of the parties, the limited financial resources of a party do not necessarily afford immunity from a costs order, but may affect the scale or quantum of costs (see Parsons v. Parsons (2002), 2002 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.) at para. 12).

[9] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen [2013] O.J. No. 4229 (S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[10] As I observed in my endorsement, the respondent refused to allow any access to the child by the applicant, even for the purpose of assessment by the OCL clinician, which frustrated the attempt by the clinician to conduct an observation of the applicant with the child to assess his parenting abilities. The clinician, in her report, described the approach taken by the respondent as "rigid" which in turn "placed the child in her sole custody and care with no foreseeable opportunity for resolution without more intrusive action instituted by the court or otherwise."

[11] The respondent inflexibly maintained the position that the applicant should have no access to the child, in spite of the fact that she had not taken that position in her Answer, but had pleaded that access should be on a supervised basis.

[12] The position adopted by the respondent gave no recognition to the principle that children should have, and indeed are entitled, to have as much contact with each parent as is consistent with their best interests.

[13] I find that the inflexible approach taken by the respondent by refusing reasonable requests for access, thereby forcing the applicant to commence proceedings and to bring this motion, and by frustrating the clinical investigation undertaken by the OCL, represents unreasonable conduct on her part, prima facie justifying an award of substantial indemnity costs.

[14] I do not agree that all of the time spent by counsel for the applicant prior to March 12, 2014 should be excluded from consideration. It is evident that preparation began on the notice of motion and affidavit material on October 28, 2013. I would exclude the time indicated prior to that date, comprising 1.3 hours of lawyer’s time and 1.9 hours of clerk’s time.

[15] I would not give effect to the submission that the time for completion of motion material and for preparation for the motion was excessive, particularly in light of the absence of any Bill of Costs or Costs Outline from the respondent which would permit an assessment of her reasonable expectations. I would also not give effect to the submission that the disbursement for the report of Lourdes Geraldo should be disallowed. The subject report was included in the motion materials and was referred to in argument.

[16] I agree that the claim for travel is somewhat excessive. In my view, travel time should be charged for at no more than one half of a lawyer’s hourly rate. I would reduce the travel time by one hour.

[17] I find that a reasonable substantial indemnity hourly rate on a motion of this nature, for a lawyer of less than 20 years experience, bearing in mind the reasonable expectations principle set forth in Boucher v. Public Accountant Council (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 38, would be $350. I would therefore reduce the fee component to $5,500 and allow the claimed disbursements of $1596.37, plus HST on the fees in the sum of $715.85, for a total of $7,812.22.

[18] The final question relates to whether a reduction in the applicant's claim for costs should be applied in light of the respondent’s financial means as a single mother with four children, one of which is a special needs child confined to a wheelchair. Although it may be suggested that the fundamental purposes of costs awards referred to in Fong v. Chan would militate against a consideration of the respondent's financial situation in reducing the costs award, in this particular case the impact of a substantial cost award on the respondent’s children is a relevant and compelling consideration. I would therefore reduce the costs award by 35% to a rounded amount of $5,100 inclusive of fees, disbursement and HST.

[19] I would not order that the costs award be set-off against the child support obligation of the applicant which is yet to be determined, however, I would provide that the respondent may have 90 days from the date hereof to pay the costs award.

Disposition

[20] Is therefore ordered that the respondent pay to the applicant the costs of the motion fixed in the sum of $5,100, all-inclusive, within 90 days of the date hereof.

D.A. Broad, J.

Date: June 30, 2014