SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-0037221-0001

DATE: 20150708

RE: Erica Ariel, Applicant

AND:

Shawn Anthony Cotterell, Respondent

BEFORE: Kiteley J.

COUNSEL: Maureen Bennett Henry, for the Applicant

Lauren Speers, for the Respondent

HEARD: in writing

ENDORSEMENT

[1] In an endorsement released April 10, 2015, I dealt with motions by the Applicant and the Respondent with respect to the child. In paragraph 103, I directed the parties to make written submissions as to costs. Counsel for the Respondent provided written submissions dated April 28. I did not receive written submissions from the Applicant by May 5, 2015 (which was the deadline) or up to this date.

[2] Counsel for the Respondent has provided a bill of costs which indicate total costs in the amount of $16,295. She asks for an order for full recovery costs but she has provided a partial indemnity calculation in the amount of $9777 (at 60%) and substantial indemnity in the amount of $14,665 (at 90%). Lauren Spears was called to the bar in 2012 and the rate charged for her services is $250 and Theodore Nemetz was called in 1973 and his rate is $375. Most of the work was done by Ms. Speers or by a law clerk.

[3] I have reviewed the endorsements from prior attendances. In his endorsement dated May 8, 2014, Jarvis J. made an endorsement “no order as to costs”. On December 11, 2014 when I adjourned the motion, I reserved costs of that day to the hearing of the motion. Other endorsements are silent as to costs. While I did not preside over all of the other attendances, I do know from my review of the file as summarized in the earlier endorsement, that there were many attendances, some in haste prompted by Ms. Ariel, some in response by Mr. Cotterell, some adjournments at the request of Ms. Ariel or because she did not attend. Costs of the attendance were not a priority and hence most of the endorsements are silent.

[4] Mr. Cotterell was more successful than was Ms. Ariel. Pursuant to rule 24(1) he is presumed to be entitled to costs even if costs were not reserved on each attendance.

[5] In paragraphs 45 to 71 of the earlier endorsement I outlined the serious concerns that were evident in the material. For example in paragraph 48 I found that Ms. Ariel had routinely denied access causing the father to seek the intervention of court to order her to comply. At paragraph 53 I found that she had failed to comply with the name change order which was consistent with other non-compliant litigation behavior. At paragraph 57 I drew the inference that Ms. Ariel had deliberately interfered in the relationship between the father and the son. Although the court is cautious about awards of costs when parenting issues are involved, my earlier reasons indicate at paragraph 74 that I would receive written submissions with respect to Mr. Cotterell’s request for reimbursement of the considerable costs of the seven appearances and associated materials since March 13, 2014. I established a schedule for written materials and Ms. Ariel did not comply.

[6] I am satisfied that Ms. Ariel has acted unreasonably and accordingly, pursuant to rule 24(4), Mr. Cotterell is entitled to an order that covers most of his costs.

[7] As indicated, I did not receive written submissions on behalf of Ms. Ariel. Having reviewed the bill of costs, I am satisfied that the services rendered and the hourly rates are all reasonable. I make a modest reduction because Jarvis J. did make an order for no costs with respect to the attendance on May 8, 2014. With that adjustment, I conclude that Ms. Ariel should pay substantial indemnity costs in the amount of $13,000.

ORDER TO GO AS FOLLOWS:

[8] Ms. Ariel shall pay costs to Mr. Cotterell in the amount of $13,000 representing costs incurred between March 13, 2014 and April 10, 2015 and including written submissions as to costs.

[9] At the continuation of the motion on August 25, 2015, I will hear submissions from counsel for Ms. Ariel and Mr. Cotterell as to whether, in this unique circumstance, Mr. Cotterell’s child support payments ought to be reduced or eliminated until those costs are paid. Counsel shall serve and file written submissions not exceeding 3 pages on that issue: Mr. Cotterell by August 18, 2015; Ms. Ariel by August 21, 2015.

[10] Counsel for Mr. Cotterell may take out the order consistent with this endorsement without approval by Ms. Ariel or her counsel.

Kiteley J.

Date: July 2015