SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F952/13

DATE: January 24, 2014

RE: Michelle Nichole Grealey, applicant

AND:

Chad William Carlson and Michael Lorne James, respondents

BEFORE: MITROW J.

COUNSEL:
Sharon E. Hassan for the applicant

Kenneth B. Fraser for the respondent Chad William Carlson

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] I have reviewed the parties’ cost submissions received subsequent to my endorsement released September 25, 2013.

[2] As reflected in my endorsement, although multiple issues were raised in the various motions, the sole issue that was argued before me related to interim custody and interim access.

[3] The applicant submits she was successful and claims to be entitled to “full recovery costs” in the amount of $28,177.50 plus HST and disbursements. The disbursements are $364.83, so all inclusive, the applicant seeks a little over $32,000.

[4] The respondent submits there was divided success, and no costs should be payable.

[5] The respondent appends his bill of costs and this shows he has incurred fees of approximately $25,700. However, these fees are from the inception of this matter in late June 2013. The respondent submits that the costs claimed by the applicant were incurred for the period August 27, 2013 to approximately late September 2013 as appears from the applicant’s lawyers’ time dockets.

[6] I find the applicant achieved some success on the issues argued before me: although the order was interim joint custody, the childcare schedule placed the children primarily with the applicant, who had moved recently from London to St. Thomas. Primary care was the central issue. Also, the youngest child was permitted to attend school in St. Thomas.

[7] I find that the applicant is presumptively entitled to some costs as she was more successful than the respondent.

[8] Considering the factors in rule 24(11), the custody/access issue was important, but was not overly difficult or complex.

[9] The applicant argues that the respondent acted in bad faith. I do not find bad faith conduct by the respondent in relation to the custody and access issues that were before me. The threshold for a “bad faith” finding is a high hurdle: see Ayala v. Giron, 2011 ONSC 4658 and the authorities cited therein as to the elements of bad faith.

[10] Each party accuses the other of unreasonable conduct. While I am not prepared to find that either party’s conduct on the custody/access issue elevated to being “unreasonable,” I do find that there are aspects of conduct that are relevant in assessing costs. These would include the following:

a) The affidavit material filed by both parties was “unnecessarily voluminous and prolix” (para. 11 of the endorsement);

b) Only the respondent served an offer to settle. While his offer was not as favourable as the order, it demonstrates, at least, an attempt to settle. The applicant served no offer. In family law cases especially, it is important to serve offers, and to serve them often;

c) The preponderance of evidence supported the respondent’s legitimate complaint that the applicant had attempted to change the youngest child’s school from London to St. Thomas without the respondent’s knowledge.

[11] Regarding the time spent on the case, it is noteworthy that both parties are of modest means. The respondent is a general manager at a local pub. The applicant is a dental assistant. They each have modest assets.

[12] The overriding principle in awarding costs is reasonableness. The Court of Appeal for Ontario has made that clear: see, for example, Davies v. Clarington (Municipality), 2009 ONCA 722 at paras 52-55 (Ont. C.A.).

[13] The time dockets submitted by the applicant’s lawyers, unfortunately, do not contain a description of the work done for each time entry; rather the seven pages of computer generated time dockets, for each entry of billable time, describe the work done as “custody and access proceeding,” making it difficult to engage in any meaningful analysis of the time spent.

[14] If the applicant chooses to pay her lawyer over $32,000 for a custody/access motion, then that is her business. However, when the court is required to make an order for costs, then the overriding principle of reasonableness intercedes and must prevail.

[15] There was a significant disparity in lawyers’ rates. The applicant’s lawyers’ rates were higher because of seniority. I find the rates for all lawyers for both parties to be reasonable.

[16] I find that the amount claimed by the applicant is in “the stratosphere” bearing no relationship to what is reasonable in all the circumstances. Although the respondent’s costs are also high, they represent his entire costs for all issues from the commencement of the proceedings. However, even in circumstances where both parties elect to incur huge fees to pursue a motion, that, per se, does not mean that a court should regard “huge costs” as reasonable when exercising its discretion in awarding costs.

[17] This was a motion that was not overly difficult, involving two parents of modest means and assets. In that context, the applicant’s claim as to quantum is unreasonable. There is no sense of proportionality. One can only speculate as to what a trial would have cost if the applicant wants over $32,000 in costs for a custody/access motion.

[18] The applicant seeks full indemnity costs in circumstances where she has submitted no offer, and rule 18(14) is not engaged. There is no basis in law entitling the applicant to full indemnity.

[19] The excessive affidavit material has driven up the costs of both parties unreasonably.

[20] Further, I take into account that contrary to the applicant’s position, the order was for joint custody. Accordingly, there is some element of divided success on the custody/access issues that I take into account in reducing costs to which the applicant may otherwise be entitled.

[21] The reasonable amount of costs to be ordered in the present case bears no resemblance to what is sought.

[22] I order the respondent to pay costs to the applicant fixed in the amount of $5,000 inclusive of HST and assessable disbursements, payable at the conclusion of this case.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 24, 2014