COURT FILE AND PARTIES

COURT FILE NO.: 14-49071

DATE: 2014/10/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BETHANY SUSANNE BARRITT, Applicant

AND:

DREW DANIEL BARRITT, Respondent

BEFORE: The Honourable Justice D. A. Broad

COUNSEL: Filomena Andrade, for the Applicant

Charles Morrison, for the Respondent

COSTS ENDORSEMENT

Background

[1] On August 7, 2014 Justice Taylor heard a motion brought by the respondent on an urgent basis prior to a case conference for increased access to the parties’ four year old child. After hearing argument and noting that there was conflicting evidence in the affidavits filed on the motion, Justice Taylor found that there should be regular access by the respondent to the child pending the case conference. He ordered that, on a temporary, without prejudice basis, the respondent was to have care of the child on alternate weekends from Saturday morning at 9 AM until Sunday at 5 PM until the case conference set for September 12, 2014. He ordered that the respondent was to refrain from the use and consumption of non-medically prescribed drugs or alcohol during any access period and for period of 24 hours preceding any access period. He adjourned the balance of the motion to the case conference, including the costs of the argument of the urgent motion.

[2] The case conference was held on September 12, 2014. By an addendum to my endorsement on the case conference, I directed that counsel make written submissions on the costs of the motion before Justice Taylor. The parties have now delivered their submissions on costs, and the following is my disposition with respect to the costs of the motion heard by Justice Taylor.

Positions of the Parties

[3] The respondent argues that he was the successful party on the motion and seeks costs in the sum of $7,063.82, comprised of fees of Mr. Morrison (hourly rate $350) in the sum of $2,975 plus HST, fees of a junior lawyer, Ms. Gomes, (hourly rate $200) in the sum of $2,180 plus HST, fees in respect of a clerk (hourly rate $75), in the sum of $180 plus HST, estimated lawyer’s fee for appearance on the case conference (2 hours) in the sum of $700, and disbursements and HST thereon in the sum of $335.27.

[4] The respondent argues that, pursuant to subrule 24(1) of the Family Law Rules, he is presumptively entitled to an award of costs, that his claim for access to the child was fundamental that, unless he was prepared to wait until a contested motion could be scheduled following a case conference his access would have been severely restricted, and the motion was necessary because, despite efforts at negotiating reasonable access, the applicant was adamant in refusing to enlarge his access to the child beyond a five hour period.

[5] The applicant submits that neither party should be awarded costs as neither party was entirely successful in their positions on the motion, and in any event, the respondent is not entitled to substantial indemnity costs as he did not make an offer to settle to which rule 18(14) of the Family Law Rules would have any application.

[6] The applicant argues that the time spent by the respondent’s counsel and his junior lawyer, totaling 19.4 hours, of which only 2.7 was court time, was excessive, and that the time claimed for the clerk should be disallowed as it comprises non-assessable secretarial work. For comparison purposes she submitted a Costs Outline of her own costs totalling $2,734.60 on a partial indemnity basis and $4,101.90 on a substantial indemnity basis.

Guiding Principles

[7] Pursuant to subrule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter.

[8] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 SCJ). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[9] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The Court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), O.J. No. 2634 (C.A.) at para. 26 and Coldmatic Refrigerator of Canada Ltd. v. Leveltek Processing LLC 2005 1042 (ON CA), [2005] O.J. No. 160 (C.A.)).

[10] Armstrong, J.A. in Boucher cast the overriding principle of reasonableness as an access to justice issue. At para 37 he stated as follows:

The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.

[11] The Court of Appeal in the recent case of Marcus v. Cochrane 2014 ONCA 207 reaffirmed that the application of the principle of proportionality in making sound costs awards is fundamental to the health of our system of justice. Goudge, J.A. put it this way at para. 15:

In fixing those costs, it is important to remember that the dispute was essentially about a claim for approximately $80,000. The partial indemnity bill of costs of appellant's counsel Mr. Marks was $172,645.55. The full indemnity bill of costs of the respondents was $160,706.99. The comparison of what this dispute was about and what was spent on it is stark and difficult to justify. While undoubtedly Mr. Marks, as counsel asserting the claim, must bear the greater responsibility, the principle of proportionality which is fundamental to any sound costs award cries out for application by both counsel. With the assistance and indeed the direction of the trial judge if need be, counsel simply must cut the cloth to fit. The health of the justice system depends on it. Trial costs cannot serve as an incentive to look away from this important challenge.

Analysis

[12] In my view, the respondent was the successful party on the urgent motion before Justice Taylor and is therefore presumptively entitled to the costs of the motion. Furthermore, there was nothing in the circumstances which serves to displace that presumption. Although the applicant argued that access should not be expanded until the respondent underwent a hair follicle test, Justice Taylor did not go that far, but imposed the more customary requirement that the respondent refrain from the use and consumption of non-medically prescribed drugs or alcohol prior to and during any access period.

[13] However, applying the principles of proportionality and reasonable expectations, I would not allow the full amount claimed by the respondent. The relief granted was only on a temporary, without prejudice basis, pending the holding of a case conference and the motion was therefore not dispositive of any issue in the proceeding. Moreover, the claim for costs includes costs of the case conference. I find that there was nothing in the position adopted by the applicant in the case conference which would justify the imposition of a costs award against her.

[14] In all of the circumstances it is ordered that the applicant pay to the respondent costs of the urgent motion before Justice Taylor fixed in the sum of $3,800.00, inclusive of fees, disbursements and HST. This amount is to be paid within 30 days hereof.

D.A. Broad

Date: October 2, 2014