SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHANNON THOMAS SUZUKI – Applicant v. BRYNN EWING (SCHILLECI) - Respondent
BEFORE: The Honourable Madam Justice Liza Sheard
COUNSEL: Wendy D. Rogers, for the Applicant Kevin Doyle, for the Respondent
HEARD: Written Submissions on Costs
ENDORSEMENT ON COSTS
SHEARD J.
1This was a motion for summary judgment brought by the applicant father. He was seeking sole custody of the child of the parties, with supervised access to the respondent mother. He also sought an order that the mother pay Guideline support for the child and that she provide annual evidence of her income.
2The applicant father had had custody of the child since June 2010. Pursuant to a Final Order made on October 3, 2012, he was granted sole custody of the child and the respondent mother was allowed supervised access. She had not been paying child support.
3In response to the applicant’s application, the Mother brought her own claim for custody of the child, with access to the father, guardianship of the child’s property, and for other relief.
4On January 7, 2016 I granted the applicant father’s motion for summary judgment on all issues and released full reasons on January 18, 2016. I invited the parties to provide brief submissions on costs in the event that they could not agree on costs. I have received those submissions.
Positions of the Parties
5The applicant father seeks his costs as a successful party.
6The respondent mother argues that no costs should be awarded because the issues in dispute concerned the best interests of the parties’ child and that the Court ought not to discourage parties from placing proposals before the Court by the concern of a costs award. The respondent also argues that in a case in which child custody and access are the main issues, costs ought not to be awarded unless there are exceptional circumstances. She argues that she ought not to have costs awarded against her as she was not acting unreasonably in defending the motion for summary judgment, the outcome of which would determine whether or not her access would continue to be supervised. Lastly, she argues that an award of costs would create financial hardship, as her income is under $15,000.00, from which she must already pay child support which I had ordered that she pay.
Factors
7Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “FLR”) govern the award of costs. Rule 24(1) creates a presumption that a successful party is entitled to costs.
8The FLR also require the court to consider the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; bad faith of a party; the lawyer’s rates; the time properly spent on the case; expenses properly paid (FLR, 24) and offers to settle (FLR 18).
Success
9The applicant was entirely successful in this litigation.
Complexity and Importance of the Issues
10The matter was of moderate complexity and difficulty. In essence, the applicant was seeking to maintain the status quo with respect to custody and access and only the new relief related to a request that the respondent mother contribute toward the support of the child. There was a lengthy record in this matter which was quite clear in describing the steps that the mother needed to take in order to move from supervised to unsupervised access. She did not take those steps.
Unreasonable Behaviour or Bad Faith
11Counsel for the applicant also argues, and the evidence would support, that the application made by the respondent for custody of the child with access to the father was made only after he brought an application seeking that she contribute towards the support of their child. Given that the mother had not had custody of the child since June 2010 and had consented to a final order in October of 2012 which gave sole custody of the child to the applicant, her claim for custody was unrealistic. Moreover, she has only had supervised access to the child since 2012. It is difficult to avoid concluding that the mother’s custody application was made to discourage the father’s application seeking an order that she contribute towards the support of their child.
12The mother strenuously resisted having to contribute anything toward the support of the child. Her position on that issue underscored the unreasonableness of her application for custody of the child.
13Finally, the lengthy record documented the unfounded and unsubstantiated allegations of the father’s sexual abuse of the child made by the mother and by her own mother as against the applicant. Those allegations were found to be harming the child and were central to the previous Court’s determination that access be supervised. Despite that, in her application in this matter, the mother again repeated these allegations and dredged up events that predated the final order granting the applicant sole custody of the child.
14I therefore conclude that the Answer and allegations made by the respondent mother in this proceeding amounts to unreasonable and bad faith behaviour.
15While I accept that the mother was genuine in her desire for an order for unsupervised access, the previous court orders outlined the steps that the mother would have to take in order to change from supervised to unsupervised access. She did not take those steps. Instead, she chose to try to re-litigate issues previously determined. For that reason, I find her conduct to be unreasonable. It was always open to her to simply agree to pay something toward the support of her child, without requiring the applicant to bring this court application. Similarly, having had a court identify the steps that she needed to take to move to unsupervised access, it was within the mother’s power and control to do so. Had that happened, the outcome of her application might have been different. It is even possible that the applicant would have agreed to move to unsupervised access, had he been provided with any evidence that previously identified concerns had been addressed.
Lawyer’s Rates
16Counsel for the applicant has submitted her Bill of Costs which shows the total amount charged to the applicant for the entire proceeding was $3,657.86. The applicant asks for costs on a full indemnity basis or, in the alternative, any lesser portion of costs that this Court might deem appropriate and just.
17The hourly rates charged by the applicant’s lawyers are $150 for Wendy D. Rogers, who was called to the bar in 1990, and $109.14 per hour for Jessica Vo, called to the bar in 2012. I find these hourly rates to be very low and more than reasonable.
18I find that the costs sought by the applicant, even on a full indemnity scale, would be a reasonable amount for the amount of work involved and the nature of the application.
19Were it not for the financial circumstances of the respondent, the decision to award the applicant costs on a substantial indemnity basis would be easy. Further, I am mindful of the jurisprudence that warns against allowing a party to be shielded from any liability for costs simply by reason of their lack of income and assets. (Parsons (2002) 2002 CanLII 45521 (ON SC), 31 R.F.L. 5th 373 (S.C.J.) and Takis v. Takis, [2003] O.J. No. 4059 (S.C.J.))
20In determining the amount of child support to be paid by the mother, I took into account only her ODSP income. However the mother’s supporting affidavit sworn July 29, 2014 stated that she was a stay-at-home parent with plans to work from home for her husband’s company to supplement her ODSP income. Also, there was evidence that, although her husband lives in the United States, when she is here, the respondent lives with her parents and when she is in the United States, she lives with her husband. There was no evidence as to the amount of income the applicant has been or will be able to earn working for her husband’s company.
21To deny any costs to the applicant would be unfair to him. As stated above, I do accept that the respondent’s cross-application was intended to be used as a tool to discourage the applicant from pursuing child support. For those and the other reasons set out above, I find that an award of costs ought to be made against the respondent.
Amount the Unsuccessful Party would Reasonably Expect to Pay
22As set above, I find the hourly rates charged by the applicant father’s lawyers to be very low. Ms. Rogers is senior counsel and her hourly rate of $150 is very low. The amounts charged for disbursements are also very low. For example, photocopies are charged at $.10 per page. I was given no evidence from the respondent mother regarding the time spent or legal fees charged by the mother’s lawyer, whether or not paid directly by her, which I might use to compare those charged by the applicant’s lawyer. Also, no submissions were made on the part of the respondent mother respecting the amount of the fees being sought by the applicant father.
23Based on the evidence and information before me, I find that it would be reasonable for the mother to expect that she would be required to pay some portion of the applicant’s costs and that the starting point of $3,657.86 would be viewed as extremely reasonable. I further find that, given the unreasonableness of her application for custody, the mother would reasonably expect to pay something toward the costs of her losing application as well as the costs of the applicant’s successful application that she contribute toward the support of their child.
24I conclude that she would reasonably expect to pay at least partial indemnity (60%) costs.
Disposition
25Accordingly, I award costs of $2,200.00 to be paid to the applicant father by the respondent mother. This amount is intended to be roughly 60% of the applicant father’s full indemnity costs. Again, given my findings of unreasonable and bad faith conduct, had the mother’s financial situation been different, I would have ordered the mother to pay costs on a substantial indemnity basis.
The Honourable Madam Liza Sheard
Date: March 30, 2016
CITATION: Suzuki v. Ewing, 2016 ONSC 2142
COURT FILE NO.: FC-06-2592-1
DATE: 2016/03/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SHANNON THOMAS SUZUKI – Applicant v. BRYNN EWING (SCHILLECI) - Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Wendy D. Rogers, for the Applicant Kevin Doyle, for the Respondent
ENDORSEMENT ON COSTS
Released: March 30, 2016