SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-09-00016061
DATE: 20140709

RE: E.A., Applicant

AND:

F.A.S., Respondent

BEFORE: C. Horkins J.

COUNSEL: Gary Joseph and Elissa Gamus, for the Applicant

F.A.S., acting in person

HEARD at Toronto: in writing

COSTS ENDORSEMENT

[1] The applicant seeks costs of her summary judgment motion that was heard on April 17, 2014. On this motion, the applicant requested sole custody of the child, WA, and an order that the respondent have no access to the child. In addition to the summary judgment relief, she requested some miscellaneous relief that was mostly granted.

[2] I granted summary judgment on the issue of custody and ordered that the applicant shall have sole custody of the child. On the issue of access, I decided that there was a genuine issue requiring a trial and ordered that this issue proceed to trial.

[3] The applicant seeks costs of $39,773.72. This consist of the following: 60% of the costs to argue the motion (60% of $24,174 or $16,389.97), disbursements plus HST of $783.75 and the costs of the custody issue incurred before the hearing of the custody motion ( $20,000 plus HST, $22,600). The applicant calls this “hybrid full recovery” because she was successful on custody and is seeking full recovery for costs associated with this issue.

[4] Rule 24 Family Law Rules, O. Reg. 114/99 deals with costs. Rule 24(1) states that the successful party is presumed entitled to costs.

[5] Rule 24(11) of Family Law Rules, O. Reg. 114/99 states that in setting the amount of costs the court shall consider the following factors:

(11) A person setting the amount of costs shall consider;

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[6] In awarding costs, I must identify an amount that is fair and reasonable in the circumstances. Two decisions from the Court of Appeal emphasize this approach: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291(C.A.) and Moon v. Sher, [2004] O.J. No. 3942 (C.A.).

[7] This was a one day motion. The evidence consisted of affidavits. There was no questioning or cross-examination on the affidavits.

[8] Counsel for the applicant shared the work load among two lawyers and a law clerk. Two lawyers attended in court and this is reflected in the bill of costs.

[9] The issues were important to the parties and of average complexity. The applicant’s counsel has restricted costs to the time spent on custody since the access part of the motion was denied.

[10] The applicant argues that the respondent did not act in good faith on this motion. She refers to his request for time to file material and then his failure to do so despite having been granted time by Justice Penny. If by this the applicant alleges that he acted in bad faith, I am not convinced that his conduct on this motion rises to this level. Certainly his decision to not file a further affidavit was surprising, but I fail to see why this should justify the amount of costs that the applicant seeks.

[11] The respondent says that he can only afford to pay $2,000 in costs and asks that this be paid from the money that remains in trust from the sale of the matrimonial home. The respondent cannot use this trust money to pay costs. On the motion, I ordered that the remaining money in trust be used to pay Mr. Hurwitz’s outstanding account in the amount of $1,917.47 and that the balance be used to pay the fees of Mr. Hurwitz and Dr. Henderson incurred for the access trial.

[12] The respondent says that he has had difficulty finding suitable work because he was convicted of a criminal offence (see para. 26-29 of my reasons for judgment). The respondent’s own criminal conduct cannot be used as a shield against costs or to argue that costs should be significantly reduced.

[13] The applicant is entitled to costs since she succeeded on the custody part of her summary judgment motion. However, costs must be fair and reasonable in the circumstances. The amount of costs that the applicant is seeking far exceeds what is fair and reasonable for a one day motion.

[14] I fix the applicant’s costs of her motion at $10,000 and order the respondent to pay this amount.

Horkins J.

Date: July 9, 2014