Superior Court of Justice - Ontario

CITATION: Klassen v. McKeown, 2016 ONSC 2495

COURT FILE NO.: 16-317

DATE: 20160412

RE: Aaron William Klassen, Applicant

AND:

Alicia Ann McKeown, Respondent

BEFORE: The Honorable Mr. Justice Russell Raikes

COUNSEL: C. Bird, Counsel for the Applicant

J. Stanfield, Counsel for the Respondent

HEARD: Written Submissions Filed

ENDORSEMENT

[1] The Applicant father seeks costs of an interim motion for custody and access arising from my decision released February 22, 2016. The Applicant requests costs on a full indemnity basis. He asserts that the Respondent mother acted unreasonably in moving to Bowmanville and in allowing the Applicant very limited access to their daughter after the move.

[2] The Applicant has submitted a bill of costs for fees, disbursements and HST in the amount of $14,158.92 on a full indemnity basis. In the alternative, the Applicant asks that partial indemnity costs of $8,495.35 be awarded.

[3] The Respondent submits that although unsuccessful on the motion, she had a genuine belief that she was acting in her daughter’s best interests. There was an incident of domestic violence. She moved out and moved home to be with family. She made repeated requests to mediate which were refused by the Applicant. She acted reasonably in dealing with procedural issues prior to the motion return date.

[4] The Respondent argues that a large cost award will prejudice her ability to care for her daughter. Further, she submits that the costs claimed by the Applicant are excessive in the circumstances. She submits that costs in the range of $3000 are adequate.

[5] Costs in this case are governed by Rule 24 of the Family Law Rules. There is a presumption that the successful party is entitled to the costs of a motion: Rule 24(1). There is no suggestion that the Applicant behaved unreasonably and, as a consequence, should be deprived of his costs even though successful.

[6] In my view, the Applicant is entitled to his costs of the motion as the successful party. There is no reason to deviate from the presumption in Rule 24(1) in this case.

[7] Rule 24(11) sets out a list of factors that a court must consider when setting the amount of costs. Those factors are:

a. the importance, complexity or difficulty of the issues;

b. the reasonableness or unreasonableness of each party’s behaviour in the case;

c. the lawyers’ rates;

d. the time properly spent on the case;

e. expenses properly paid or payable; and,

f. any other relevant matter.

[8] Although an interim motion, the issues were clearly very important to the parties. The applicable law is well-established. As on most family motions, the decision on the motion turns on the particular facts before the court. That was the case here.

[9] I do not agree with the Applicant’s contention that the Respondent behaved unreasonably. As I indicated in my Reasons on the motion, there is an allegation of domestic physical abuse which is before the criminal courts. I am not prepared to speculate on the outcome of that proceeding either to determine the merits of the motion, nor for costs purposes.

[10] The Bill of Costs filed by the Applicant indicates that counsel who appeared and argued the motion expended 27.8 hours at $350 per hour and another four hours at $175 per hour. The latter four hours is for travel time which is not recoverable on a partial indemnity basis. In addition, there is clerk time and 1.8 hours of senior counsel time at $500 per hour. Mr. Bird, who argued the motion, was called to the Bar in 2011.

[11] The disbursements amount to $692.25 on which HST is claimed. This includes $350 for a process server to serve and file the notice of motion, affidavits, factum and books of authority.

[12] I am not satisfied that the Respondent’s conduct merits an award of full indemnity costs. Although she was unsuccessful on the motion, there is nothing in her behaviour at the time or subsequently, nor in her conduct of the litigation, that leads me to conclude that full indemnity costs are appropriate.

[13] The costs claimed by the Applicant for the motion are excessive. This motion took 30 minutes to argue. Applicant’s counsel was under the mistaken belief that in Stratford, motions of up to an hour could be dealt with in regular motions court. Counsel were advised immediately upon the motion being called that only 30 minutes was permitted for a motion in regular motions court and, if it was going to take longer, a special appointment date could be booked. Counsel for both parties cooperated and assured the court that they were content to proceed. Indeed, they completed their submissions efficiently and within the 30 minutes without any request for additional time.

[14] I find that this motion was a straightforward matter. In addition to custody and access, there were a number of ancillary and collateral issues which are referred to in my decision but which did not form part of the motion argued before me. In my view, the Respondent should pay to the Applicant the sum of $2500 inclusive of disbursements, plus HST on that amount for the motion. I so order.

The Honourable Mr. Justice R. Raikes

Date: April 12, 2016