ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 72/08
DATE: 2014/07/17
BETWEEN:
TERESA SUPPLE (CASHMAN)
Applicant
– and –
BRAD CASHMAN
Respondent
Catherine D. Purvis, for the Applicant
Brian Ludmer and Stephen Eaton, for the Respondent
HEARD: In writing
REASONS FOR decision on costs
1The ten-day trial that transpired in June, 2014 is but another chapter in the long, simmering dispute between two parents who have very great difficulty understanding what is truly in the best interests of their two teenaged sons. I heard the trial of the issues between the dates of May 26 and June 6, 2014; my Judgment was released on June 13, 2014. At trial, the main issues concerned custody and access of the two children, as well as whether the Applicant mother, Ms. Supple, should be held in contempt of previous Orders of this Court.
2At the conclusion of my judgment, and in the event that the parties were unable to resolve the issue, I invited submissions on the question of costs. I have now received and considered the written submissions on costs as submitted by each of the parties. The submissions of the Applicant, Ms. Supple, are dated June 19, and July 8, 2014, while those of the Respondent, Mr. Cashman, are dated July 7, 2014.
3The Applicant seeks an award of costs on a full indemnity basis in the total amount of $69,284.49, inclusive of fees, disbursements and HST.
4The Respondent has requested the Court to exercise its discretion and award no costs. Alternatively, he has submitted a request that the Court give consideration to offsetting the award of costs in the amount of $7,500.00 granted to him in the August 30, 2013, motion, together with a portion of the costs relating to Dr. Worenklein’s assessment and attendance at trial, which totaled $13,375.00.
5Overall, it would appear that the Applicant, inter alia, was successful at trial in that her request for an order of sole and permanent custody of the two boys was granted. Additionally, the Applicant vigorously and successfully defended the Respondent’s motion that sought an order declaring that she was in contempt of earlier court orders.
6The Respondent takes the position that success at trial was divided in that, among other things, he was granted a generous and regular schedule of access to the children. I agree with that portion of the Respondent’s submissions.
7However, the Respondent has also asked the Court to consider a Notice of Motion, together with a supporting Affidavit, that postdates the Court’s decision and which has neither been filed nor served. I find these materials to be irrelevant and improper for inclusion in the Respondent’s costs submissions. I have, therefore, not given either document any consideration or weight in my deliberations on the issue of costs.
8Rule 24(1) of the Family Law Rules, O. Reg. 114/99, creates a presumption that “a successful party is entitled to the costs of a motion, enforcement, case or appeal.” I am aware, however, of the Court of Appeal’s statement in M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), at para. 40 , that while “the general provision, Rule 24(1), enacts a "presumption" that the successful party is entitled to costs of the case [it] does not require that the successful party is always entitled to costs.” The Court retains its discretion, granted under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. 43, to refuse to order costs where the circumstances so warrant.
9Having now had an opportunity to read and consider the submissions on costs and having taken into consideration the provisions of rr. 24(1) and (11) of the Family Law Rules, I find this to be an appropriate case in which to grant an award of costs in favour of the Applicant. That being said, I nonetheless find that the cost award sought by the Applicant to be high, given all of the circumstances of this case.
10In particular, I reject the Applicant’s submission that she should receive costs for her attendance at the numerous case conferences which occurred over the course of this proceeding. Attendance at case conferences does not, in the normal course of events, warrant an award of costs. Case conferences comprise a mandatory step in the litigation process for which attendance is compulsory. These case conferences provide litigants with an opportunity to identify, and often times resolve, key outstanding issues between them. It is also at case conferences that the parties can set out the preliminary steps required to litigate any remaining issues.
11I have also given due consideration to the Respondent’s request to offset the earlier August 30, 2013, Court cost award together with a modest proportionate share of the costs related to Dr. Worenklein. With respect to the latter request, the Respondent submitted that Justice Tausendfreund’s Order for an assessment by Dr. Worenklein was made on consent. I note, however, that Justice Tausendfreund’s amended Order makes it clear that the Applicant contested the motion for an assessment.
12Notwithstanding that Justice Tausendfreund’s Order was not made on consent, I find that it is still appropriate that the parties share the cost of Dr. Worenklein’s assessment and testimony. As noted in my decision on the merits, although I found that I could not accept the final recommendations as outlined in Dr. Worenklein’s assessment, I nonetheless found his work and his opinions to be helpful in understanding the complex nature of some of the issues created by this highly dysfunctional family. I have, therefore, deemed it fair and just to attribute the sum of $6,687.00 (50 per cent) to the Applicant as her responsibility and share of the $13,375.00 total incurred by the Respondent for Dr. Worenklein’s work.
13The Respondent submits that the Applicant’s calculated hourly rate of legal fees at $150.00 is inappropriately high, given that the Applicant was assisted by a lawyer at Legal Aid Ontario. The rate of Legal Aid is approximately $130/hour, and the Respondent submits that the Applicant’s costs should be calculated using this lower hourly rate for legal fees. However, the legislation and jurisprudence makes it abundantly clear that the amount of costs to be awarded to a party is not to be affected by the fact that the party has been legally aided: see s. 46 of the Legal Aid Services Act, 1998, S.O. 1998, c. 26, and the Ontario Court of Appeal’s decision in El Feky v. Tohamy, 2010 ONCA 778.
14In coming to my decision, I also take note of, and agree with, the reasoning of the Court of Appeal in Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4 : “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
15Finally, I have also considered the effect that a cost award may ultimately bring to bear on the best interests of the children: M. (C.A.), at para. 42. I am concerned that too high of a costs award will negatively affect the Respondent’s ability to financially aid his children in the future. Of course, an inappropriately low award runs the risk of having the same effect on the Applicant’s ability to financial care for her children. As noted at the outset of the trial, the costs reasonably expected to be incurred by the parties for a ten-day hearing would be sufficient to pay for at least one of the children’s entire post-secondary school education.
16In summary, I have considered the final outcome of the trial, which I deem to be, at least in part, of divided success; the conduct of each of the parties throughout the course of this protracted litigation; the objectives of fairness and reasonableness, particularly with respect to the effect of a costs award on the children; and the offset amounts noted above in arriving at my costs decision. I have determined that an award to the Applicant of costs in the amount of $20,000.00 (inclusive of disbursements and HST) constitutes fair and adequate compensation. For clarity, I remark that this amount is arrived at after deducting the setoff amounts noted above. An Order will therefore be issued directing the Respondent to pay to the Applicant the sum of $20,000.00 as costs within 90 days of the release of this decision.
Sheffield J.
Released: July 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TERESA SUPPLE (CASHMAN)
Applicant
– and –
BRAD CASHMAN
Respondent
REASONS FOR DECISION ON COSTS
Sheffield J.
Released: July 17, 2014