Court File and Parties

Newmarket Court File No.: FC-11-038669-00 Date: 20160725 Ontario Superior Court of Justice

Between: Jason Gordon Wallace, Applicant Counsel: M. Danielle Cunningham for the Applicant

- and -

Angela Leona Closs, Respondent Counsel: Self-represented

Heard: November 18 and 26, 2015

Judge: Jarvis J.

Ruling on Costs

[1] On December 30, 2015, Reasons for Decision in this matter were released. The respondent mother (“the mother”) did not attend trial, although she had periodically participated in the proceedings beforehand. Efforts to contact her by the court were unsuccessful.

[2] The trial proceeded on November 18 and 26, 2015. Directions were given with respect to delivery of costs submissions.

[3] A copy of the Decision was served on the mother by regular mail at her last disclosed address as appears in the court records. The applicant (“the father”) made costs submissions: the mother did not.

[4] Subsequently the father brought a motion to have the mother found in contempt of the Order made at trial. Efforts to personally serve the mother were unsuccessful. A further Order was made respecting mail service on the mother of the decision, costs submissions and the father's motion for a finding of contempt. A new court date (April 13) was set. The mother did not appear so a new date was set and an Order then made for the mother's apprehension. This Order was successfully executed on April 26, 2016 and the mother appeared in court on April 27, 2016. Further directions were given at that time with respect to implementing terms of the Decision regarding access between the child and his father. The mother acknowledged that she had received and read the Decision.

[5] As of this date, the trial Decision has not been appealed. No costs submissions have been made by the mother. There is no motion before the court to extend or otherwise vary the terms of the trial Order dealing with delivery of costs submissions.

[6] The father is entitled to costs of these proceedings to Trial. He has requested costs of $11,355.41 comprising fees ($8,808.94), disbursements ($1,240.12) and HST ($1,306.35). The total costs incurred by the father were $12,617.13. Accompanying the father's costs submissions were a Costs Outline and the solicitor’s ledger which detailed the work done and disbursements incurred.

[7] In reviewing the court file and counsel’s submissions, it is noted that there were at least four conferences held where no endorsement was made about costs. Absent any such endorsement, no costs may be awarded for those steps: Islam v. Rahman, 2007 ONCA 622, [2007] O.A.C. 371, 41 R.F.L. (6th) 10 (Ont. C.A.). Nothing otherwise about the solicitor’s account in terms of work done, disbursements incurred, or hourly rates charged is unreasonable.

[8] As observed by the Court of Appeal in Serra v. Serra, 2009 ONCA 395, modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

[9] The overall objective in determining costs is fixing an amount that the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 201, [2004] O.J. No. 2634, 2004 CarswellOnt 521 (Ont. C.A.). Since the primary objective of the Family Law Rules is to enable the court to deal with cases justly, it is incumbent on parties who, by choice or necessity, litigate to act reasonably and in a cost effective manner. This means that family law litigants are responsible, and accountable, for the positions they take in their litigation: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317, and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 (Ont. Ct.). These observations include cases in which a party for no reason ignores the court process.

[10] In my view, given the father's success at trial and the very reasonable account for services rendered, it would be fair and reasonable that the mother pay to the father costs of $8,000 inclusive of disbursements and HST.

Justice D.A. Jarvis Date: July 25, 2016