Bramham v Dawe, 2016 ONSC 2503

Court File and Parties

COURT FILE NO.: 35/38/014026/14 DATE: 20160413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Ronald Bramham, Applicant AND: Holly Victoria Dawe, Respondent

BEFORE: The Honourable Mr. Justice Russell Raikes

COUNSEL: Jason Ronald Bramham, Self-Represented Nancy Pringle, Counsel for the Respondent

HEARD: Written Submissions Filed

Endorsement

Introduction

1I released my decision from the trial in this matter on March 9, 2016. I invited the parties to make written submissions as to costs in the event they were not able to reach agreement. The Respondent has made written submissions; the Applicant has not. It is now two weeks past the deadline for written cost submissions.

2The trial dealt with issues of custody, access and child and spousal support. In addition, it addressed a motion brought by the Respondent pursuant to Rule 1(8) of the Family Law Rules which was subsumed into the trial. That motion arose from the Applicant’s refusal to complete the required in-take form for the Office of the Children’s Lawyer pursuant to three previous court orders.

3At paragraph 109 of my decision at trial, I ordered the Applicant to pay to the Respondent her costs of the Rule 1(8) motion on a full indemnity basis subject to my approval of her Bill of Costs for same.

4The Respondent was represented by counsel at trial. She was Legal Aid funded. Accordingly, any costs payable for the motion or trial belong to Legal Aid.

5The Respondent seeks costs of the Rule 1(8) motion in the amount of $4000 plus HST. As for the trial, the Respondent seeks costs of $11,300 inclusive of HST and all disbursements.

6I am mindful that in determining the quantum of costs, the court shall consider the lawyer’s usual hourly rate even where the party is legally aided: Foran v. Foran [2001] O.J. No. 430 at para 16; Ramcharitar v. Ramcharitar et al; Legal Aid (Intervenor) (2002), 62 O.R. (3d) 107 at para 23.

Costs of the Rule 1(8) Motion

7I have reviewed the Bill of Costs for the motion under Rule 1(8) of the Family Law Rules. As mentioned, I have no submissions from the Applicant. The Bill of Costs submitted includes time for other issues which formed part of the relief before the court. The amount of $4520 inclusive of HST is a rough parsing of the time as between the issues. I offer no criticism of counsel; in fact, it is difficult to see how she could do otherwise. Nevertheless, the amount for cost seems to me too high. I fix the costs for the Rule 1(8) motion at $2800 inclusive of HST.

Costs of the Trial

8The trial in this matter lasted four days. The Applicant enjoyed some success in that his access to his daughter was substantially increased and was no longer supervised. He was unsuccessful to the extent that he sought custody or, more accurately, the right to impose decisions upon the Respondent with respect to the care of their daughter if she did not agree with him. He was also unsuccessful in opposing spousal support although, again, some arrears of spousal support were vacated. He indicated during the trial on a number of occasions that he was prepared to pay child support.

9On balance, I am satisfied that the Respondent was the more successful party at trial, although there was a measure of divided success. The issues were important to the parties as reflected in the amount of time spent at trial and the contested nature of the issues litigated.

10Rule 24(1) of the Family Law Rules indicates that there is a presumption that a successful party on a motion or trial is entitled to his or her costs. The court may decline to award costs to a successful party where that party has behaved unreasonably: Rule 24(4) of the Family Law Rules. There is before me no submission nor do I see any basis to deviate from the presumption that costs should be awarded to the more successful party for the trial.

11In determining the amount payable for costs, the court is guided by Rule 24(11) of the Family Law Rules which sets out the factors that the court must consider:

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 including, inter alia, preparation, hearing and argument; e. expenses properly paid or payable; and f. any other relevant matter.

12As indicated above, the issues at trial were important to the parties. Although the law related to those issues is well-established, there was a great deal of evidence, much of it conflicting that had to be considered. In general, I would assess the complexity of this case is falling in the range of normal or standard in family law custody litigation.

13There is no suggestion nor did I observe anything in the comportment or approach taken by the Respondent that I would describe as unreasonable. The steps leading up to and including the trial itself were made considerably more difficult by the obstinacy of the Applicant. He adopted a “pick and choose” approach, i.e. he would pick and choose those orders or those parts of orders that he was prepared to abide by.

14Ms. Pringle’s normal hourly rate is $400 per hour. She is a senior counsel with 20 years of experience in family law. Her hourly rate is appropriate to her experience and expertise.

15I have reviewed the Bill of Costs submitted for the trial. The time recorded clearly relates to preparation for and attendance at the trial. It seems a reasonable having regard to the issues before me and the difficulty dealing with this particular self-represented litigant.

16The disbursements are very modest and appropriate.

17Having regard to the above factors including partial success by the Applicant, I fix the costs at trial at $8,500 inclusive of disbursements, together with HST on that amount for a total of $9,605.