Court File and Parties
Newmarket Court File No.: FC-11-039572-00 Date: 2016-06-30 Ontario Superior Court of Justice
Between: Euphrasia Paul, Applicant – and – Kenneth Edell, Respondent
Counsel: Self-represented, for the Applicant Donald Zaldin, for the Respondent
Heard: May 17, 2016
Ruling on Costs
Douglas, J.
[1] This is my ruling on costs following my Reasons for Decision following trial dated May 17, 2016.
[2] This was a focused trial with the issues to be determined defined as follows:
a. Determination of Ethan’s school and whether current school is consistent with the December 3, 2014 order; b. telephone access; c. sharing of Ethan’s passport.
[3] Regarding the school issue, this was clearly the main issue in contention between the parties. There can be no doubting that the Respondent father was successful on this issue. I ordered that Ethan attend a public school and I found that the Applicant mother had breached the order of December 3, 2014 regarding this issue.
[4] Regarding the phone access issue, I find that while the result was somewhat mixed and that both parties benefit from the further clarify provided by my order, there was a higher degree of success to the Applicant mother. A source of the problem on this issue was Respondent father not having a land line and thus making it difficult for Applicant mother to contact Ethan when the Respondent father was at work with his phone.
[5] Regarding the passport issue, I did not accept either party’s position but the result is more in line with Respondent father’s position of equal access to the passport in contrast with the Applicant mother’s position that she should have control of the passport and make it available to the Respondent father as needed.
[6] Overall the parties enjoyed balanced success on the smaller issues of phone access and passport but the Respondent father was clearly successful on the primary and most time-consuming issue of schooling for Ethan.
[7] The Respondent father seeks full recovery costs in the amount of $17,274.88 or alternatively partial recovery costs in the amount of $12,207.69.
[8] The Applicant mother does not appear to seek costs in her submissions but submits that she is not able to afford costs. She indicates that she is a single person with a one income family and contrasts her financial circumstances with those of the Respondent.
[9] Pursuant to Rule 24 of the Family Law Rules there is a presumption that a successful party is entitled to the costs of the case.
[10] Where success in a case is divided I may apportion costs as appropriate. Rule 24(11) of the Family Law Rules sets out the factors to consider in awarding costs:
a. The importance, complexity or difficulty of the issue; b. the reasonableness or unreasonableness of each parties behaviour; c. the lawyers’ rates; d. the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; e. expenses properly paid or payable; and f. any other relevant matter.
[11] There can be no doubting the importance of the schooling issue in particular; however, the issues were not complex are particularly difficult.
[12] Given my findings as set out in my reasons for decision of May 17, 2016, I must conclude that the Applicant mother has been unreasonable in her position regarding the school issue.
[13] The lawyer’s rates set out in the Respondent father’s Bill of Costs are not unreasonable.
[14] In terms of time spent on the case, I must consider proportionality. This trial was commenced on May 16 and finished on May 17, 2016. As indicated above, this was a focused trial and I am appreciative to both parties for having so proceeded. Having said that, I must consider what is fair and reasonable given the narrow issues to be decided in terms of the expenditure of time set out in the bill of costs of the Respondent father.
[15] I do not find that the Applicant mother has conducted herself with bad faith within the meaning of Rule 24(8) of the Family Law Rules as submitted by Respondent father.
[16] The Applicant mother should not consider herself inoculated against an award of costs based on her financial circumstances. Parties who initiate legal proceedings and define positions that ultimately prove untenable at trial must be encouraged to consider the consequences of so proceeding. The most effective way to encourage careful consideration of the consequences is to award costs in an amount that is fair, reasonable and proportional to the issues in light of the factors outlined in Rule 24 of the Family Law Rules.
[17] In all of the circumstances I conclude that costs in the amount of $7,500.00 are appropriate plus HST and payable by the Applicant mother at the rate of at least $500.00 per month commencing July 15, 2016 until paid in full.