ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-09-67
DATE: 2014/01/24

BETWEEN:

L. B.
Applicant

– and –

M. B.
Respondent

Thomas R. Hunter, for the Applicant

Ron Paritzky, for the Respondent

HEARD: By Written Submissions

DECISION ON COSTS

KANE J.

MOTION AND CROSS-MOTION

[1] The respondent brought this motion for an order:

(a) incorporating the Minutes of Settlement between the parties into a final order, and

(b) directing the applicant to comply with the final order by instituting the parenting schedule agreed upon by the parents with the terms thereof to be enforceable by police.

[2] The cross-motion by the applicant was brought in response to the above motion of the respondent. The applicant sought to:

(a) vary the provision of joint custody in a final order such that she will have sole custody, and

(b) to limit the respondent to supervised access until he undergoes a psychological or psychiatric assessment.

DECISION

[3] This court in its decision:

(a) granted sole custody of J. to the applicant thereby varying the final order,

(b) ordered the respondent to undergo lengthy individual psychological or psychiatric counselling to address his stated issues, and

(c) granted the respondent increasing access pursuant to a formula subject to the counselling ordered.

[4] Neither party was fully successful. The respondent did not obtain equal time with J. Sole custody was granted to the mother. He is required to successfully engage in counselling for a fixed period. What he was successful in obtaining was immediate and increasing time with J., without supervision and without a full assessment as requested by the mother.

[5] The reasons of this court articulate the issues regarding the respondent and his past conduct which the applicant relies upon to seek costs at a scale above partial indemnity. Many of the complaints as to his past conduct are valid.

[6] I disagree with the mother’s submission that she has always been open and supportive of the relationship between J. and the respondent. As to the applicant and her conduct, this court in the decision:

(a) recorded her acknowledgement that she needed and would undergo counselling to learn more about and improve her parenting skills and to develop better skills to assist her children to become more independent of her, and she of them,

(b) determined that she had participated in the escalation of arguments with the respondent, and

(c) determined that she was content to have the respondent out of J.’s life over an extended period of time, potentially to the child’s detriment.

POSITION OF THE PARTIES ON COSTS

[7] The respondent accepts that costs on a scale of partial indemnity should, given the outcome of the motions, be awarded to the applicant but at a level substantially less than requested. The respondent submits the appropriate, reasonable, proportional level to be awarded is $7,400, being an amount within the reasonable expectation and financial capacity of this losing party. The respondent currently earns annual income of $79,500. He lists his current debt load at $30,000 and reminds the court that he is financially responsible to support other children in addition to J.

[8] The applicant seeks costs from the respondent:

(a) On a full indemnity basis, of $28,500,

(b) On a substantial (85%) indemnity scale, in the amount of $24,200, or

(c) On a partial indemnity scale at 75%, in the amount of $21,400.

OFFERS

[9] There are no offers submitted.

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 it's 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 and the reasonableness of any offer made, withdrawn or failed to accept ─ 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] Custody and access are unquestionably central and important issues in family law.

[13] The applicant was more successful than the respondent on the motions. Notwithstanding the above determinations regarding the applicant, this court remains of the view that she is entitled to costs. The respondent agrees. The issue is scale and quantum.

[14] The applicant in her submissions is requesting more than cost indemnification. She is seeking to punish the respondent in the form of a cost award for his conduct dating back to 2008, long prior to these motions.

[15] The applicant side steps her conduct. The conduct of the respondent is more blameworthy but the court has addressed much of that conduct in awarding sole custody, requiring extended counselling terms and limiting access with J. in the interim.

[16] Increased costs are not required to send a message to this respondent. His conduct and unresolved issues resulted in him losing his motion, losing custody of his son, losing immediate equal time sharing involving J. and the requirement that he undergo extended counselling.

[17] The applicant was clearly successful over all, but lost on her request for supervised access and a full assessment of the respondent. The shopping cart incident and yelling between parents does not justify a scale increase from partial to substantial. If it did, the substantial scale would be the norm in family law which it is not. The appropriate scale of costs here is partial indemnity.

[18] The applicant originally notified the court her argument would be one hour. Upon return of the motion, she advised she would be a much longer thereby necessitating an adjournment. That resulted in increased costs as the parties geared up a second time to argue the motions. That increase in costs is not recoverable against the respondent.

[19] There is a very wide discrepancy in docketed hours by counsel which I do not understand. Docketed time for the applicant is 113 hours, plus other time not docketed. The applicant did not submit actual time dockets. That limits this court’s analysis of the docketed time being claimed. The respondent reports docketed time of 36 hours. This dramatic difference was not responded to by the applicant.

[20] The applicant’s 113 hours, or 14 eight hour days, is high and exceeds what this losing party should reasonably expect to be responsible for on the issues in these motions. Comparatively, the applicant’s case was strong on paper and in fact, thereby raising the question why her time should be between three to four times more than the respondent’s time.

[21] The docketed time for the applicant includes 29 hours in preparation for and attendance for the first court appearance which resulted in her requested adjournment. Three weeks later, there is another 16 hours claimed for preparation and attendance on the argument of the motions. This duplication is not the respondent’s responsibility.

[22] Given the year of call of counsel, the hourly rate charged is appropriate.

DECISION

[23] Based on the above considerations, the applicant is awarded costs on a partial indemnity scale in the amount of $9,500, inclusive of tax and disbursements. That amount is payable in three equal instalments on the 1st day of February, July and October, 2014. That amount consists of 60 hours at $250/hour, reduced by 60% for partial indemnity, and adding $500 towards the cost of H.S.T. and disbursements.

[24] Such cost award is payable within 60 days.

Kane J.

Released: January 24, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

L. B.
Applicant

– and –

M. B.
Respondent

decision ON COSTS

Kane J.

Released: January 24, 2014