Shelley v. Wismer, 2015 ONSC 896

COURT FILE NO.: 6574/14

DATE: February 10, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Janice Lee Shelley, applicant / respondent-in-appeal

AND:

Kimberly Ann Wismer, respondent / appellant, and Ryan Lovelock, respondent / respondent-in-appeal

BEFORE: MITROW J.

COUNSEL: Nancy Hellyer for Janice Lee Shelley

Katherine E. Orkin for Kimberly Ann Wismer

No one appearing for Ryan Lovelock

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] Pursuant to my endorsement made November 17, 2014, allowing the appeal, I have reviewed the written costs submissions of the parties appearing on the appeal: the appellant, Kimberly Ann Wismer (“Ms. Wismer”), and the applicant and respondent-in-appeal, Janice Lee Shelley (“Ms. Shelley”).

[2] The respondent-in-appeal, Ryan Lovelock (“Mr. Lovelock”), did not participate in the appeal, although he did appear to have a common interest with the appellant in the issues on appeal.

[3] Ms. Wismer seeks costs of the appeal (according to the bill of costs) in the amount of $22,862.73 inclusive of disbursements and HST. Ms. Wismer further submits that $1,200 in fees plus disbursements and HST were incurred to prepare the costs submissions.

[4] Ms. Shelley submits that the parties should bear their own costs of the appeal.

Discussion

[5] Ms. Wismer and Mr. Lovelock are the biological parents of two children, ages 9 and almost 5 at the date of the hearing of the appeal on November 17, 2014. Ms. Shelley is the maternal grandmother.

[6] Pursuant to a final order dated August 30, 2013 made in the Ontario Court of Justice in a proceeding between Ms. Wismer as applicant and Mr. Lovelock as respondent, Ms. Wismer was awarded custody of both children, and Mr. Lovelock’s access included alternate weekends from Friday at 7:30 p.m. to Sunday at 7:30 p.m.

[7] By application issued October 18, 2013 in the Ontario Court of Justice, Ms. Shelley commenced her own application seeking access to the children (her grandchildren). The relief sought was “reasonable access on reasonable notice.” Mr. Lovelock and Ms. Wismer were named as respondents in that application; despite being properly served, they each made the foolish and unreasonable decision not to appear in court.

[8] As a result, Ms. Shelley’s application proceeded on an undefended basis on February 14, 2014. Ms. Shelley obtained a final order in the Ontario Court of Justice granting her access in week one from Monday at 7:30 p.m. to Wednesday at 7:30 p.m., and in week two from Wednesday at 7:30 p.m. until noon Saturday. It was this order that was appealed by Ms. Wismer.

[9] As noted in the endorsement on the appeal, Ms. Shelley, in her application, failed to disclose to the Ontario Court of Justice that there was already an existing final order made between the parties; there was no reference in the new final order to the existence of the first order; and the trial judge, on the undefended hearing, according to the evidentiary record, was never advised of the existing final order.

[10] Not only was Ms. Wismer forced to bring a motion in this court in the appeal proceeding to stay the order under appeal, but Ms. Shelley immediately involved the police to “enforce” the Ontario Court of Justice order and brought a motion for contempt in the Ontario Court of Justice. Not surprisingly, the evidence on the motion to stay the order painted a somewhat chaotic picture of two young children, whose primary care by their mother, Ms. Wismer, was being significantly and adversely impacted by the extensive access granted to Ms. Shelley.

[11] On the motion to stay, the endorsement of Leitch J. dated April 14, 2014 made findings that the access awarded to Ms. Shelley is disruptive to the custody and access agreed to by the parents in their order, and that the order obtained by Ms. Shelley “significantly interfered” with the children’s time with their mother who is their primary caregiver, and that the conflict between the two orders impacts the children in a “negative way.” Leitch J. made an order staying the Ontario Court of Justice order pending the appeal.

[12] The appeal was allowed on the basis of the preliminary issue raised by the court during the hearing of the appeal: that Ms. Shelley failed to disclose to the Ontario Court of Justice, during the undefended hearing, that there was already an existing final order between the parents; that Ms. Shelley failed to structure her proceeding as a motion to change; and that Ms. Shelley’s application filed with the Ontario Court of Justice contained no disclosure of the existing final order (even though Ms. Shelley, in her application on page 3, answered “yes” to the question “Have the parties or the children been in a court case before?”).

[13] Ms. Shelley’s conduct was patently unreasonable within the meaning of r. 24(5); she withheld critical information from the trial judge and she failed to recognize her conduct in that regard; she failed to comprehend the clear message sent to her in Leitch J.’s endorsement as to the serious problem with the order; and she compounded her unreasonable conduct by involving the police, and then initiating a motion in the Ontario Court of Justice to find Ms. Wismer in contempt of court.

[14] The conduct of Ms. Shelley falls within the upper range of unreasonableness; her behaviour throughout, that included misleading the Ontario Court of Justice by not disclosing the existing final order, constitutes conduct that is inimical to the children’s best interests and borders on bad faith.

[15] I have considered the “offer” made by Ms. Wismer dated April 11, 2014 (which was not structured as a r. 18 offer but which was a consent endorsement request signed by Ms. Wismer and her counsel), the r. 18 offer to settle dated September 24, 2014 made by Ms. Wismer, and the response in letter form from Ms. Shelley’s counsel dated October 1, 2014 responding to the September 24, 2014 offer.

[16] It is noted that, during the hearing of the appeal, counsel and parties were urged to have some discussions about a resolution as to access if the appeal was allowed. After the court read its endorsement on the appeal, the parties filed a consent as to access in favour of Ms. Shelley that included regular periodic visits once each month on a Saturday from 10:00 a.m. to 8:00 p.m. on a weekend when the children are with the mother, Ms. Wismer. The consent was incorporated into the order made on appeal.

[17] Ms. Wismer is presumptively entitled to costs of the appeal pursuant to r. 24(1).

[18] I disagree with Ms. Wismer’s submissions that her offers engage the automatic costs consequences of r. 18(14). Assuming, without deciding, that the consent endorsement request constitutes a r. 18 offer, both offers refer to Ms. Shelley’s contempt motion in the Ontario Court of Justice being withdrawn without costs. That relief is outside the scope of the appeal and within the jurisdiction of the Ontario Court of Justice; the order on appeal therefore makes no reference to the motion for contempt; hence Ms. Wismer has failed to satisfy para. 5 of r. 18(14).

[19] However, I do still consider the consent endorsement request and the formal offer under r. 18(16). Ms. Wismer’s proposals were most reasonable; in fact the first “offer” had more regular periodic access in favour of Ms. Shelley than ordered on appeal.

[20] I have considered the factors in r. 24(11). I agree with Ms. Shelley’s submissions that the time spent was excessive; Ms. Orkin docketed 20.25 hours to April 11, 2014 and 85.25 hours thereafter.

[21] The hours docketed are not only excessive, but include time spent in the Ontario Court of Justice responding to the motion for contempt that are not part of the appeal; also the time spent on the motion before Leitch J. and the attendance before Bryant J. should not be included as part of the appeal costs because the respective endorsements were silent as to costs. If Ms. Wismer wished the costs before Leitch J. and Bryant J. to be considered as part of the costs of the appeal, it was incumbent on her to raise the costs of those steps in the appeal proceeding before those judges, given r. 24(10): see Islam v. Rahman, 2007 ONCA 622 (Ont. C.A.).

[22] The overriding principle in awarding costs to a successful party is reasonableness, rather than engaging in a purely mathematical exercise. A judge should consider a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of costs of the successful party. This includes a consideration of the reasonable expectation of the unsuccessful party: see Davies v. Clarington (Municipality), 2009 CarswellOnt 6135 (Ont. C.A.) at paras. 51-52.

[23] The fresh evidence material filed by Ms. Wismer was not necessary and not considered on the hearing of the appeal, and should not form a part of the costs.

[24] I would assess reasonable costs on a full recovery basis in the range of $8,500 inclusive of disbursements and HST. Ms. Wismer should be entitled to a substantial portion of those costs, given Ms. Shelley’s conduct.

[25] Subject to r. 24(4), I fix the reasonable costs of the appeal at $7,500 inclusive of disbursements and HST.

[26] Ms. Wismer, however, bears some responsibility; but for her unreasonable conduct in failing to attend at court in the Ontario Court of Justice, it is most unlikely that the order under appeal would have been made. Accordingly, I reduce her costs by $1,500 pursuant to r. 24(4).

[27] I order Ms. Shelley to pay forthwith to Ms. Wismer her costs of the appeal fixed in the amount of $6,000 inclusive of disbursements and HST.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 10, 2015