ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FA-13-012

DATE: 2014/01/24

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF M.H.E., born XX-XX-2008

BETWEEN:

A. K.
Applicant

– and –

A.E.
Respondent

Gil D. Rumstein, for the Applicant

Chantel E. Carvallo, for the Respondent

HEARD: By Written Submissions

decision on costs

kane j.

MOTION

[1] The applicant was unsuccessful on his motion for an order dispensing with the consent of the respondent to an adoption under s. 138 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as am. of H, who is the biological child of the respondent father and the mother who formally was married to the respondent and is now married to the applicant.

[2] The respondent seeks costs against the applicant step-father. The applicant submits that there should be no order as to costs.

[3] This court in paragraph 59 of the decision suggested the parties consider whether seeking cost was in the child’s best interest. That referred to the possibility that a decision to waiving costs notwithstanding the respondent’s success, might assist to lower the temperature between the parties given the underlying application by the father for access. That suggestion has not been accepted, however I accept that this court’s knowledge is limited to the information presented on this motion. This court therefore will determine the issues of entitlement and quantum of the costs claimed.

DECISION FOR WHICH COSTS BEING REQUESTED

[4] The motion to dispense with the father’s consent to adoption was narrow in scope and not complicated.

[5] The respondent, through previous counsel, obtained the right to present evidence from religious officials. A previous judge required that such religious witnesses be cross-examined on their affidavits. That increased the work and costs of this motion only to then have this court decide that such contradictory information was not vital to the central point in issue. Such are the risks of litigation. In the opinion of at least one other judge, it was not however unreasonable to present that evidence.

[6] The applicant and the mother knew prior to proceeding with argument that the motion would be contested. They may have felt this motion was an additional opportunity to defeat the applicant’s other proceeding for access, although there is no direct evidence of that.

POSITION OF THE PARTIES AS TO COSTS

[7] The applicant submits that an award of cost against him would create economic hardship as his current annual income is $45,000 with which he must support himself, his wife, two children and a third child to be born in the near future. Whereas economic circumstances are a relevant consideration, they are not determinative whether costs should be awarded. That limited income level raises the question why this motion proceeded in light of the respondent’s opposition. I understand the applicant’s preference to adopt the child. That preference however does not reverse the historical reality that this biological father has been financially supporting this child since this couple’s divorce and he has as of late pursued access.

[8] The respondent seeks an award of costs on a partial indemnity scale based on his total legal costs, all-in, to his; (a) current counsel in the amount of $21,652, and (b) his previous counsel in the amount of $4,000.

SETTLEMENT OFFERS

[9] No offers are relied upon.

LEGISLATIVE PROVISIONS

[10] Subject to legislation and rules of the court, cost entitlement and quantum are at the discretion of the court. (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1))

[11] These rules provide that:

(1) A successful party is presumptively entitled to costs of a motion – Rule 24(1).

(2) Unless ordered otherwise, an offer of settlement will entitle the issuer to costs to the date of serving the offer and full recovery thereafter if the offeror proves that; (a) it is served one day before the motion or seven days before the trial, (b) the offer remained open for acceptance and was not accepted and (c) the offer equals or exceeds the order – Rule 18 (14) and (15).

(3) In exercising its discretion as to costs, the court may take a written offer to settle into account, the date thereof and its terms - even if entitlement is not established under Rule 18 (14) – Rule 18 (16).

(4) A successful party may however be deprived of costs or ordered to pay the unsuccessful party’s costs in the event of unreasonable behaviour – Rule 24 (4).

(5) As to whether conduct is reasonable or unreasonable, the court is directed to consider behaviour in relation to the issues, whether an offer was made, the reasonableness thereof and any offer withdrawn or not accepted – Rule 24 (5).

(6) Where success on the motion is divided, the court may apportion costs – Rule 24 (6);

(7) In setting costs, the court is to consider:

(a) the importance and complexity of the issues, reasonable and unreasonable conduct by a party,

(b) the lawyers hourly rates,

(c) the time property expended in the matter as well as appropriate expenses paid, and

(d) any other relevant matter – Rule 24 (11).

ANALYSIS

[12] The respondent was successful and is presumptively entitled to cost.

[13] Limited financial means should dictate caution against commencing litigation which inherently creates risk to the applicant and his dependants.

[14] Both parties agree that any cost awarded should be payable over time in order to prevent a negative impact to the child’s living conditions.

[15] There is no conduct relevant to entitlement. Non-compliance to the applicant’s short notice demand for financial disclosure of the income level of the respondent is not relevant to entitlement.

[16] There is no material reason not to award costs to the respondent given the presumptive entitlement under the rules.

[17] There is an issue as to quantum for the following reasons:

(1) The applicant included his counsel’s legal account. On a full indemnity scale, that account totals $12,100, all-in. That amount is based on an hourly rate of $300 and docketed time of just over 30 hours.

(2) The respondent’s legal accounts show docketed time in the case of his; (a) current counsel, of 78 hours and; (b) former counsel, of 29.5 hours, for a total of 107.5 hours.

(3) Changing lawyers creates duplication and increased cost which the applicant is not responsible for.

(4) The respondent’s former counsel docketed in one and one-half hour blocks which signals that such docketing is an estimate and not actual time expended.

(5) Dockets time reveals higher than normal communication from and with the respondent. That is a personal or relationship preference of the client which the applicant is not responsible for.

(6) Docketed time by the lawyer includes some clerical tasks which normally are part of overhead and not normally recoverable in a cost award.

DECISION

[18] Based on the above considerations, the respondent is awarded costs totalling $3,400, inclusive of disbursements and tax. That amount incorporates consideration of the applicant’s limited financial means. That amount shall be payable by the applicant monthly at the rate of $200, commencing February 1, 2014. Such periodic payments reduce the possibility of financial impact on the child.

Kane J.

Released: January 24, 2014

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF M.H.E., born XX-XX-2008

BETWEEN:

A. K.

Applicant

– and –

A.E.

Respondent

decision ON COSTS

Kane J.

Released: January 24, 2014