Nye v. Carroll, 2015 ONSC 3764

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA NYE

Self-represented Applicant

Applicant

• and -

BERT RICHARD ALLEN CARROLL

Luigi De Lisio, for the Respondent

Respondent

The Honourable Madam Justice W.L. MacPherson

COSTS ENDORSEMENT

1A motion to change was brought by the respondent. Following a nine day trial, a material change in circumstances was found to have occurred and the respondent/father was granted sole custody of the child with the applicant/mother to continue to have supervised access visits through Pathstone Mental Health. Changes to the child support and spousal support obligations were also made, such that both were terminated.

2The applicant’s claims that she be granted sole custody of the child or, in the alternative, that her access to the child be unsupervised were dismissed. In addition, the applicant failed in all of her claims with regard to support, save and except that given her current circumstances, no child support was ordered to be paid by her at this time.

3The judgment was rendered on April 2, 2015. The parties were invited to make written submissions on costs. The respondent’s counsel’s costs submissions have been received. The applicant’s submissions were due on May 19, 2015, but as of the date of this endorsement, no cost submissions have been received by the applicant.

4The respondent is seeking costs on a substantial indemnity basis in the amount of $54,297.80 comprised of fees of $47,660.00 (including counsel fee of $24,000.00), disbursements of $416.00, and H.S.T. of $6,221.80. In the alternative, the respondent is seeking costs on a partial indemnity basis in the amount of $47,613.85 comprised of fees of $41,745.00, disbursements of $416.00, and H.S.T. of $5,452.85.

5The issue of costs in Family Law matters is determined by Rule 24 of the Family Law Rules. Rule 18 is not applicable as there were no Offers to Settle. In addition, s. 131 (1) of the Courts of Justice Act, R.S.O. 1990, c. 43 as amended gives the court a broad discretion to deal with costs in a proceeding.

6Pursuant to Rule 24 (1), the successful party is presumed to be entitled to recover costs. The respondent clearly was successful on the motion to change and he is entitled to the benefit of this presumption.

7Rule 24 (11) of the Family Law Rules provides that when setting the amount of costs the court shall consider the factors listed therein, including the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour; the lawyer’s rates and the time properly spent in dealing with the matters; expenses paid or payable and any other relevant matter.

8The majority of the trial was devoted to the issues of custody and access which were extremely important to both parties. Although the respondent’s counsel has invited me to find that the applicant was unreasonable in the positions taken and her behaviour throughout the proceeding, I decline to do so. It was apparent throughout the trial that the applicant was unable to adjust her behaviour even after hearing at length from the Office of the Children’s Lawyer as to the impact that her behaviour was having on the child. It was for that reason that in the final judgment, it was determined that the applicant’s access needed to continue to be supervised. This was also the reason that as an incident of that access that the applicant was to attend for psychological testing and was to follow any treatment and counselling recommended by those involved in her mental health care.

9From a review of the bill of costs, the amount of time spent was reasonable and necessary and the fees were appropriate given the experience of the respondent’s counsel. However, that is not the only consideration. Rather, it is clear, based on the principles set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont C.A.) that it is not simply a mathematical calculation of the time properly spent multiplied by the lawyer’s hourly rate, but an award of costs must reflect what is a fair and reasonable amount to be paid by an unsuccessful party in all of the circumstances.

10I am mindful of the fact that there is not an insignificant disparity in the incomes of the parties. The applicant is in receipt of Ontario Works. While she does receive additional income (child support and disability benefits) for Hunter, an adult child in her care, this should not be considered for purposes of determining the mother’s obligation to pay costs.

11On the one hand, I have no doubt that a cost award in any amount will impose a financial hardship on the applicant. On the other hand, one’s ability to pay a cost order cannot entirely shield that party from a cost award, particularly when the other party has been entirely successful in the claims made.

12After considering the circumstances of this case, including the provisions of the Rule 24 of the Family Law Rules and exercising my discretion under s. 131 of the Courts of Justice Act, an order shall issue requiring the applicant to pay costs to the respondent in the amount of $10,000.00 inclusive of disbursements and H.S.T.

MacPherson J.