ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 4187/15
DATE: 2015/08/13
BETWEEN:
LISA ANN SYER
Applicant
– and –
JAMES MICHAEL SYER
Respondent
Self-Represented
Gerry Smits – Counsel for the Respondent
COSTS
The Honourable Mr. Justice Pazaratz
[1] I have considered the written submissions regarding costs, filed pursuant to my July 14, 2015 typed motion endorsement.
[2] The primary issue was jurisdiction:
a. The Applicant mother resides in Hamilton.
b. The Respondent father resides in Alberta.
c. The only child of the relationship had been in the Respondent’s custody in Alberta. He is 18 and no longer dependent.
d. The Applicant brought a motion in Hamilton to change a 2013 Alberta order which had in fact changed a 2002 Alberta order.
e. The 2002 order specified that Alberta would retain jurisdiction over custody, access and child support issues.
f. The Respondent was successful on this issue. I ordered that the Applicant’s Hamilton proceeding be stayed, and that the motion to change should be dealt with in Calgary.
[3] The Applicant seeks costs calculated:
a. $5,542.57 Full indemnity, or
b. $3,440.02 Partial indemnity (both figures inclusive of disbursements).
[4] A secondary issue arose with respect to ongoing payments:
a. The Respondent consented to the Applicant’s request that ongoing child support be terminated, and that she pay $250.00 per month toward arrears (pending determination of her motion to reduce overall arrears).
b. The Respondent said this was never an issue; ongoing child support had already been stopped as of March 2015; and he had never opposed repayment of arrears at the rate of $250.00 per month.
c. The Applicant submits it was necessary for her to obtain the order because – as confirmed by counsel for the Family Responsibility Office at the outset of the motion – ongoing payments had never been terminated.
d. The Applicant submits her success on these monetary issues constitutes divided success. The Respondent counters that these issues were resolved quickly and on consent.
[5] The Applicant submits her fees (as a self-represented lawyer) are approximately the same as the Respondent’s.
[6] Among my considerations in determining costs:
a. While each party obtained certain relief at the motion, the relief obtained by the Applicant was either uncontested or minimally contested, and it was not time-consuming.
b. The most time-consuming issue related to jurisdiction – and the Respondent was successful on this issue. He is presumptively entitled to costs.
c. The Respondent identified his position on the jurisdiction issue very early in the process, offering an opportunity for this motion to be avoided.
d. While I acknowledge the Applicant’s position on the jurisdiction issue was arguable, in my view the 2002 Calgary order (specifying that Alberta would retain jurisdiction) was clear and should have been determinative of the issue.
e. The Applicant has attempted to characterize the Respondent’s behaviour and approach to this litigation as constituting “bad faith”. If true, this would have serious implications in relation to costs. However, I see no sign of anything even approaching “bad faith”.
f. Speaking plainly, both parties behaved reasonably. But the Respondent adopted a position which I determined to be legally correct.
g. The jurisdictional issue was important, but not particularly complex. It required some legal argument.
h. The lawyer’s rates, the time expended, and disbursements are all reasonable.
i. The case was argued skillfully and efficiently.
j. I have considered the financial impact of this litigation (and any costs award) on each of the parties.
[7] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that modern costs rules are designed to foster three fundamental purposes:
a. To partially indemnify successful litigants for the cost of litigation.
b. To encourage settlement, and
c. To discourage and sanction inappropriate behaviour by litigants.
[8] Determining the amount of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome. The overriding principle is reasonableness. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.).
[9] This is not one of those rare cases in which full indemnity costs should be awarded.
[10] The Applicant shall pay to the Respondent costs fixed in the sum of $3,000.00 inclusive of H.S.T. and disbursements.
Pazaratz, J.
Released: August 13, 2015
COURT FILE NO.: 4187/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA ANN SYER
Applicant
- And –
JAMES MICHAEL SYER
COSTS
The Honourable Mr. Justice A. Pazaratz
Released: August 13, 2015