ORILLIA

COURT FILE NO.: FC-10-109-01

DATE: 20151223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ASHELY CALLAGHAN

Applicant

– and –

ERVIN JACKSON

Respondent

David M. Winnitoy, for the Applicant

Brian D. Kinnear, for the Respondent

TRIAL HEARD: November 16, 17, 18, 19 and 20, 2015 - Costs by written submissions

REASONS FOR DECISION ON COSTS

EBERHARD J.

[1] The Respondent Father, Ervin Jackson, was the moving party in this Motion to Change. He achieved after trial what he sought, namely, primary care of the child of the parties.

[2] In my reasons for decision I indicated that parties may address the issue of costs by written submissions of no more than two pages together with Offers and a Bill of Costs. Respondent Father by December 11, 2015 and the Respondent Mother by December 16, 2015; Reply December 18, 2015 to Hilda Van Beek, Judicial Secretary in Barrie. I have received these submissions.

[3] Although the Applicant Mother faced a recommendation by an experienced assessor that primary care shift to the father, it was not unreasonable for her to contest that recommendation. On the level of empathy, it would be a hardened court indeed that could not recognize the imperative of a parent to try. On a litigation analysis, there were triable issues.

[4] The litigation was remarkable for its civility and sensitivity. The father agreed to interim primary care with the mother to his own detriment. The mother respected the father’s views on baptism. Both counsel were focussed, sensitive and considerate. They led the parties to a better approach by retaining an experienced assessor. Trial was conducted efficiently and with kindness.

[5] The bill of costs submitted by father’s counsel seeks a quantum that is dramatically lower than the norm for litigation in the Superior Court. Perhaps the modest fees are a response to what the market will bear, but that does not detract from the sacrifice that family law litigators make to stay in this line of work. In a court that hears both civil and family costs issues, the quantum requested here for partial indemnity for a five day trial is less than half of expectation for partial indemnity for a modest case in the civil context.

[6] So, I stress here that neither party is even slightly unreasonable.

[7] The reality is that access to the courts is expensive. As a society, we have not developed the will to facilitate access to the courts for modest people to get an adjudication where agreement cannot be expected. Caselaw presented by mother’s counsel demonstrates that some courts have declined costs orders against impoverished litigants despite their being unsuccessful in the litigation. This is especially so where the costs award would deprive the party of funds that would otherwise be used to address the needs of the children.

[8] A costs award in the present case is not a rebuke nor disapproval. Rather, it is a recognition that the successful party whose resources are needed to support the child, also experienced considerable financial pressure because of the trial. The father has better resources than the mother but he is far from wealthy.

[9] I intend to fix costs the mother must pay to the father but they are not to be enforceable in like manner as support, by which I mean that neither shall the FRO collect them from the mother by their enforcement means nor is the costs award to be set off against the child support I have ordered the father to pay to facilitate summer shared parenting. Rather it will be a judgment against the mother that shall continue until she has resources against which it can be enforced or set off against some future debt the father may incur to her.

[10] I fix costs on a partial indemnity scale as demonstrated in the Respondent Father’s bill of costs at $15,900 plus HST for fees and disbursements of $6,399.61 all in, for a total of $24,366.61.

EBERHARD J.

Released: December 23, 2015