COURT FILE NO.: 515/13
DATE: 2014-09-03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason William Earl McAllister, Applicant
AND:
Amanda Crystal Norman, Respondent
BEFORE: The Honourable Mr. Justice G. A. Campbell
COUNSEL:
Anna Towlson, for the Applicant
Respondent Self-Represent
COSTS ENDORSEMENT
[1] I have received, read and considered the Applicant’s cost submissions.
[2] The Respondent has decided not to participate in this part of the litigation process, hence unfortunately, I have not had the benefit of her response to Ms. Towlson’s proposal that I award costs to Mr. McAllister of $27,651.09, inclusive of disbursements, for the appeal, motion for further evidence and to reverse the Trial Judge’s costs award against Mr. McAllister of $5000 and allow costs against Ms. Norman of $15,000.00 for the original trial.
[3] It is also unfortunate that Ms. Norman has not (in a response submission) advised the court of her personal financial circumstances; her savings; investments; assets; employment; nor of her decision regarding which option she has chosen as allowed in the Reasons for Judgment. That is to say, whether she has elected to continue as her son, Kaiden’s primary parent here in the Waterloo Region or whether she has chosen to continue to live with her partner in the Ottawa Region and allow Kaiden to live full time with his father in Kitchener.
[4] That decision, as well as her ability to pay costs are both relevant to the court’s decision regarding the quantum of costs and the payment process (i.e. payment in full forthwith from an investment asset or payment monthly, over time, with interest.)
[5] Case law suggests that costs orders that impact on a parent’s ability to provide for a child in his/her primary care need to be modified in order to minimize its effect on that parent’s financial ability to provide their child’s necessaries of life.
[6] The Respondent, by her refusal to participate at all in this phase of the re-hearing process has deprived the court of the facts necessary to factor into its decision process any of the present realities that flow from her decision to either continue to primarily care for Kaiden in this area or to surrender his full time care to the Applicant and become a long-distance, infrequent visitor-parent.
[7] Labouring in that information vacuum, I make the following assumptions, that:
As of late August 2014, Kaiden is now in his father’s full-time care here in Kitchener.
The Respondent continues to live near Ottawa with her partner and is in full time, gainful employment there, sharing expenses with her partner, and earning in the mid-$30,000.00 annual income.
The Respondent does not have any appreciable or significant debts, investments or assets from which she could pay a cost order forthwith.
The Respondent will only infrequently visit her son in this area and that Kaiden will not visit her in Casselman except for an extended period in the summer.
The Respondent will be paying only basic guideline support based her income of about $35,000 per year (i.e. no s.7 child care expenses, since the Applicants extended family will provide before/after school care, without charge to him).
The Applicant will have, by now, made the necessary school arrangements for Kaiden and will have bought the appropriate back-to-school clothes and supplies for him.
[8] It is apparently uncontested by the Respondent that the Applicant was wholly successfully in his Appeal and per Rule 38(29) on his motion for further evidence, as he submits. One would be hard pressed to challenge that submission.
[9] Rule 24(1) provides that a successful party is presumed to be entitled to his/her costs of the appeal and motion. The issue to be decided in this case is the quantum or level of the costs to be awarded. Certain factors, and the reasonableness of the parties, are to be considered by the court when deciding a costs order (see rule 24(11) and (5)).
24(11) Factors in Costs – 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 and payable; and
f) Any other relevant matter.
24(5) Decision on Reasonableness – In deciding whether a party has behaved reasonably or unreasonable, the court shall examine,
a) The party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
b) The reasonableness of any offer the party made; and
c) Any offer the party withdrew or failed to accept.
[10] Counsel for the Applicant submits that the Respondent acted beyond unreasonably and displayed “bad faith” in her strategies and tactics, hence attracting the highest level of “full recovery/indemnity” costs.
[11] Although my findings support a view that the Respondent, by her actions and inaction, and her obstruction of and antagonism towards the Applicant did indeed act unreasonably, I am unpersuaded that her tactics rise to the level of bad faith as defined in the case law (for example see Brown v. Brown (2004) CarswellOnt 5012. One needs more than bad judgment. In that case the court found “bad faith” based on mean-spirited attacks against a vulnerable spouse intentionally designed to operate as a debilitating tactic).
[12] Counsel has also not provided any case law or Family Law Rule that specifically provides that I allow the Applicant his costs at trial as well as the Appeal and Motion for further evidence. I am therefore unwilling to reverse Hardman, Prov. J’s costs decision.
[13] However, given that once the Applicant served his Notice of Appeal, Rule 38(34) stays the Trial Judge’s costs payment Order. ( payable in full within two years of July 24, 2013). In light of the change of primary parent that I have assumed and the costs that arise there from (see assumption #6 above) I am willing to set aside (or rescind) the Applicant’s obligation to pay any of those costs of $5000 that remain unpaid as at this date. The basis for that decision is that the Applicant will now have additional ongoing expenses for Kaiden that require the use of his modest income. (rather than reimbursing the Respondent for her legal expenses incurred in a cause that has, on appeal, been found to have been ill-advised and not in Kaiden’s best interests).
[14] Accordingly, I order that whatever balance of the $5000.00 costs ordered by Hardman, Prov. J. payable by the Applicant to the Respondent that remain unpaid, are rescinded and need not be paid.
[15] Further, there now exists ample authority that I am to view the issues of costs of this appeal and motion in a flexible and balanced way, recognizing the wide discretion affording by R. 24 of the Family Law Rules, O. Reg.114/99; Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). Ms. Towlson’s client is entitled to his costs, but the quantum to be paid must reflect the factors set-out in R. 24(11), viewed flexibly; C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).
[16] I am also required to make an assessment of a sensible and fair costs result, consistent with what the unsuccessful party might reasonably have been expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). As well, the costs assessment must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, [2002] O.J. No. 3303, 2002 CarswellOnt 2666 (Sep. Ct.). See also Gale v. Gale (2006), CarswellOnt 6328.
[17] In order that his Appeal would be perfected and processed expeditiously, the Applicant was required to obtain and pay for transcripts of the trial hearing. He did so and the costs of same are a sizeable but clearly allowable disbursement. Except for the parking costs included, all of the other disbursements claimed are reasonable and allowable and I do allow them in the amount of $4379.96.
[18] After examining the factors set out in Rule 24(11) and applying them to the circumstances, positions, offers and tactics of this proceeding and using the “flexible vs. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung 2005 42254 (ONSC) Blishen J. and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, 2004 14579 (ON CA), [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order to recognize the Applicant’s complete success and in the face of his early offer to settle (and the Respondent’s intransigence and tactics), should be $12,000 inclusive of taxes plus disbursements of $4,379.96 for a total costs order payable by the Respondent to the Applicant of $16,379.96.
[19] As did Hardman, Prov. J., I take into account that the Respondent will have to start paying child support ordered and will have travel costs to incur so she can see Kaiden.
[20] Accordingly, I allow (and order) that the Respondent shall begin paying this costs order at the rate of $300/month in addition to her guideline child support from and including October 1, 2014 (and such lump sum amounts at times and frequency that she decides and her finances allow). Any remaining balance of costs not paid in full at the expiration of three years from this date shall attract interest from this date at the rate of 10% per year.
[21] I cannot end my involvement with this sad drama without observing parenthetically that had Ms. Norman but lived up to her assurances to Mr. McAllister, Kaiden, the trial court and others that she would promote and facilitate reasonable access-time between Kaiden and his father on a liberal and frequent basis, I daresay that much money, effort and heartache would have been avoided.
[22] Even after the Notice of Appeal and until the last date in court before me, Ms. Norman could have negotiated some sort of compromise arrangement. She chose not to do so and relied upon what she thought was a safe status quo circumstance that she had created and through delay, prolonged.
[23] She was wrong.
G. A. Campbell J.
Date: September 3, 2014