CITATION: Harrison v. Harrison, 2015 ONSC 2002

BARRIE COURT FILE NO.: FC-11-1624-00

DATE: 20150326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NELSIE FLORES HARRISON and MARK ANTHONY HARRISON, Applicants

AND:

WILLIAM DOUGLAS HARRISON, GEORGIAN COACH LINES INC., and GEORGIAN EMERGENCY MANAGEMENT ASSOCIATES INC., Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: P.M. Callahan, for the Applicants

J.L. Rouse, for the Respondents

HEARD: By written submissions

COSTS ENDORSEMENT

Background

[1] On January 15, 2015 the parties argued a motion and counter motion before me. The respondent William Harrison brought a motion for contempt against the applicant regarding breaches of a consent order dated August 6, 2013. He also asked for questioning. On the other hand the respondent brought a motion for spousal and child support as well as judgment against the respondent in the amount of $24,000.

[2] The majority of the parties’ claims at the motion were dismissed. All of the claims for relief brought by the respondent including his claims for contempt were dismissed. The applicant’s claim for judgment was also dismissed; however I did order temporary child support in the amount of $864 per month as well as temporary spousal support of $1,000 per month.

[3] I gave both parties an opportunity to make submissions regarding costs. Both parties claim costs on a full recovery basis. The applicant claims costs of $12,175.19 inclusive of disbursements and HST based upon success at the motion. Although Mr. Rouse on behalf of the respondent acknowledges his client’s lack of success on the motion he claims costs costs of $18,927.50 again inclusive of disbursements and HST based upon the applicant’s bad faith.

Analysis

[4] I must first determine the entitlement to costs. Once this is done I will determine the scale of costs and quantum.

Entitlement to Costs

[5] Costs are determined under Rule 24 of the Family Law Rules.[^1] Under Rule 24(1) costs follow the event and a successful party is presumed to be entitled to costs. If success is divided I may apportion costs as appropriate (Rule 24(6)). In fixing the amount of costs I may take into account the “importance, complexity or difficulty of the issues” as well as 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.” (Rule 24(11)).

[6] Conduct of the parties is also important. Under Rule 24(4) I may take into account the unreasonable conduct of either party: (see Rule 24(8) of the Family Law Rules). Under that Rule I am obliged to offer full indemnity costs payable forthwith if I find that a party has acted in “bad faith”. Moreover I may generally take into account under Rule 24(11) the “unreasonableness or unreasonableness of client’s behaviour” in assessing costs.

[7] Mr. Harrison alleges bad faith on the part of Ms. Harrison. Mr. Rouse urges me to have regard not only to success on the motion but ask to how the motion came about. It is his client’s position that Ms. Harrison’s breaches of the order and her bad faith in failing to list the house on a timely basis should result in a full recovery award of costs against Ms. Harrison.

[8] Bad faith is not unreasonable conduct. It requires more. In S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.) Perkins, J. defined unreasonable behaviour as follows:

In order to come within the meaning of bad faith in Rule 24(8), behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party or person affected by the behavior, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity without proof of intent to inflict harm, to conceal to relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent.

[9] Accordingly for me to find bad faith I must find some element of malice or intent to harm. In reviewing the evidence on the motion and the submissions of the respondent’s counsel I do not find there to be any intent to harm or malice to be present in this case.

[10] As set out in my reasons on the motion, I do not condone any breaches of any court order. Orders are meant to be obeyed; they are not suggestions. Wilful breaches of court orders may constitute bad faith behavior.

[11] The primary reason that contempt was not considered was the failure of the respondent to personally serve the motion for contempt. However, I also expressed doubts as to whether there were wilful breaches of the order sufficient to order contempt. If the breaches of the order were not found to be wilful I find it difficult to understand how there could be bad faith conduct or malice in the applicant’s behaviour.

[12] Regarding the issue of unreasonable conduct, I understand that there are concerns regarding the applicant’s failure to prepare the home for its listing and sale. However if the applicant is guilty of unreasonable conduct, so is the respondent. The respondent did not pursue the listing of the home on any reasonable or timely basis and took no steps to follow up on the listing of the home between October of 2013 and the argument of the motion. As well, I expressed my concerns in the motion about the respondent attempting to go behind the order of Wildman, J. which finally settled this matter. If there is unreasonable conduct, both parties are guilty of that. I do not find that the respondent is entitled to costs based upon either bad faith or unreasonable conduct.

[13] Regarding success on the motion, the applicant was certainly successful in having the contempt motion dismissed. As well the applicant succeeded in obtaining an order for spousal and child support. Although her motion for judgment was dismissed, the applicant was largely successful on the motion.

[14] Accordingly the applicant is entitled to costs.

Quantum of Costs

[15] The applicant claims costs on a full indemnity basis in the amount of $12,175.19 inclusive of HST and disbursements.

[16] The respondent made no offers to settle.

[17] Mr. Callahan states that he sent several pieces of correspondence in an attempt to settle. The letter sent by him to Mr. Rouse dated October 8, 2014 does not constitute an offer to settle; it is positional and merely states that the parties should discuss the motions. The second letter does not speak to settlement at all. I do not find that the applicant served any offer to settle under the Rules or for that matter, any offer to settle whatsoever, which can be taken into account under either Rule 18(14) or (16) of the Family Law Rules.

[18] As such, the applicant is entitled to costs only on a partial recovery basis.

[19] In setting costs I also take into account the fact that the applicant achieved only partial success on the motion.

[20] Having regard to the claim made by respondent’s counsel, the claim made by Mr. Callahan appears to be reasonable. The amount claimed is substantially less than that claimed by Mr. Rouse. I also do not find the time spent by Mr. Callahan on this matter to be unreasonable considering it was a long motion and there were extensive materials to prepare and to respond to.

[21] The amount claimed on a full indemnity basis inclusive of HST is $12,175.19. Taking into account the partial success on the motion and taking into account the failure to serve and file an offer to settle, I find the applicant shall have her costs of the motion in the amount of $6,000 inclusive HST and disbursements. Costs shall be payable to the applicant within 60 days.

McDERMOT J.

Date: March 26, 2015

[^1]: O. Reg. 114/99