ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Recoskie
Applicant
– and –
Paul Paton
Respondent
Wade L. Smith, for the Applicant
E. Jane Murray, for the Respondent
HEARD: July 17, 2014
ENDORSEMENT ON COSTS
PHILLIPS J.
1The Respondent Husband brought a motion which was heard on July 17, 2014. There were essentially three issues that the court was asked to decide:
whether the Respondent should pay any child support;
whether there should be an increase in access as between the Respondent and his son;
whether notwithstanding any unresolved claim on the part of the Applicant for exclusive possession of the matrimonial home under the Family Law Act, the court would order the sale of the matrimonial home pursuant to the Partitions Act.
2For reasons released on July 18, 2014, I decided all of the issues against the Respondent Husband and in favour of the Applicant Wife (Recoskie v. Paton [2014] ONSC 4352). At the end of those reasons, I indicated that since I did not hear the parties with respect to costs and given that I had essentially deferred the central issues to the trial judge, I was inclined to leave costs in the cause. Since that time, I have received comprehensive written submissions on costs from both counsel. In light of them, I have been persuaded that it would be appropriate to decide the issue of costs at this time. Since each side has filed argument and related material there would be no prejudice in doing so. Also, I have been reminded of Rule 24(10) of the Family Law Rules which does indeed direct that costs should be decided at each step of litigation.
3Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. Here, given the complete success of the Applicant Wife on all issues, that presumption operates to her benefit.
4I have also been asked to consider Rule 24(8). Ms. Recoskie asserts that Mr. Paton acted in bad faith and that costs should be awarded to her on a full recovery basis payable immediately. Her argument in this regard is based on two factors. First, she points out that the Respondent unilaterally terminated child support for his son. Second, it is claimed that the Respondent had a bad faith motive in bringing his motion in that he was aiming for tactical advantage in advance of a Settlement Conference.
5As I made clear in my reasons, I was not impressed by the fact that Mr. Paton unilaterally ceased paying child support. It would appear that he did so having come to the belief that he had overpaid (despite having arrived at the “overpayment” amount via agreement). It also would appear that he thought it would be in his interests to hold off on paying anything until learning the result of his motion for a change in the access schedule (which might have, of course, eliminated any support obligation on his part altogether). His problem was that his effort in that regard ran up against the presumption against changing the access status quo on an interim motion.
6As I also made clear in my reasons, I did not find Mr. Paton’s assertion of financial distress at all compelling in the context of his proposal that the Partitions Act prevail over the Family Law Act with respect to the competing interests over the matrimonial home. In the final analysis, I found that his having taken roughly 30 vacation trips over the past four years undermined the reasonableness of his claim of financial difficulties.
7Having said all that, I do not find that his motions seeking more time with his son or to access his equity in the matrimonial home were brought in bad faith. In my view, they were not motivated by mala fides.
8I am also not persuaded that Mr. Paton’s conduct was motivated toward gaining tactical advantage in preparation for a Settlement Conference. There is simply no evidence that I accept which supports that claim.
9Nonetheless, while Section 24(8) of the Family Law Act is inapplicable, it remains the case that the Applicant Wife had to marshal resources to answer the Respondent Husband’s multifaceted motion. The fact that she was 100% successful in all respects persuades me that she should have an award for costs.
10I have reviewed the Bill of Costs submitted by Ms. Recoskie. I have considered the complexity or difficulty of the issues and the materials and time expended to flesh them out. I note that both counsel have comparable hourly rates. Most of all I have considered that, “The overriding principle of reasonableness must govern, rather than any exact calculation of what cost should be allowed. A line by line assessment of the fees is not required” (1175777 v. Magna International (2007) 61 RPR (4th) 68, aff’d (2008) 66 RPR (4th) 186 (Ont.C.A.)).
11I fix costs on the motion in the amount of $3,500 inclusive of taxes and disbursements payable by the Respondent Husband to the Applicant Wife.
Justice Kevin Phillips
Released: September 10, 2014
COURT FILE NO.: FC-13-2377
DATE: 2014/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Recoskie
Applicant
– and –
Paul Paton
Respondent
ENDORSEMENT ON COSTS
PHILLIPS J.
Released: September 10, 2014