Court File and Parties

Citation: Hersey v. Hersey, 2016 ONSC 506 Court File No.: FS-15-20155 Date: 2016-01-25 Superior Court of Justice - Ontario

Re: Stephen Peter Hersey, Applicant And: Christine Hersey, Respondent

Before: Pollak J.

Counsel: Brahm Siegel C.S., for the Applicant Erica Tait, for the Respondent

Heard: December 3, 2015

Endorsement

[1] The cost submissions were to be made as follows:

"The Applicant’s submissions must be delivered by 12:00 p.m. on December 29, 2015; and the Respondent’s reply costs submissions must be delivered by 12:00 p.m. on January 15, 2015.”

[2] The Ccourt in its endorsement noted that the Applicant was the successful party on the issue to be decided, and that he is therefore presumed to be entitled to an appropriate costs award. The parties were invited to make submissions on the issue of costs. Notwithstanding the fact that the court did not provide for a reply by the Applicant, he filed reply cost submissions dated January 20, 2016. The court is in receipt of correspondence from the Respondent dated January 19 indicating her objection to the Applicant filing a reply when such was not permitted in the endorsement of the court. I agree with the submissions of the Respondent in this regard, the Applicant did not request leave and was not given leave to file the reply. I will therefore not consider the reply filed by the Applicant.

[3] It is also important to note that there were motions for temporary relief between the parties, where costs were reserved to the judge hearing the long motion.

[4] At the start of the motion, the Applicant advised that he had no objection to the relief requested by the Respondent with respect to child support. The Court therefore considered only the issue of the Respondent's entitlement to a retroactive spousal support. In this regard the Applicant was the successful party with respect to the issue that was considered by the court. The Respondent emphasizes that the agreement of the Applicant to the relief for child support was made by the Applicant on the “eave of the hearing” and that the Respondent had incurred significant legal fees in order to prepare for her submissions with respect to child support.

[5] The Applicant requests an order for costs in the amount of $29,700 payable within 30 days. He asserts that the three offers he made to the Respondent were more advantageous to the Respondent than the result she achieved on hearing of the motion.

[6] The Respondent argues that success was divided between the parties on the two issues in this motion, namely spousal support and child support. Further the Respondent argues she is entitled to costs of the temporary motions preceding this motion, as she was the successful party on these motions.

[7] The Respondent also argues that on balance, considering all of these motions, she is the more successful party on all of these motions. She also relies on one of her offers to settle. She apportions a percentage of her costs of the final motion between the two issues of child and spousal support. As well, the Respondent submits that by virtue of the bad faith of the Applicant which is demonstrated through the Applicant's conduct throughout litigation, the court should award costs in favour of the Respondent and deny the Applicant any costs. Finally, the Respondent argues that the court has discretion to consider her financial circumstances which clearly show that she will suffer hardship if she is required to pay the costs of the Applicant.

[8] In the case of Glionna v. Giotis, 2013 ONSC 5659, the court reviewed the applicable provisions of the Family Law rules and the principles that are to be applied in arriving at an appropriate costs award in a family law matter. The court summarized some general principles as follows:

[16] An analysis of every family law case should commence with a refresher course on Rule 2 of the Rules which states as follows:

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[9] As well the court referred to the relevant provisions of the rules as follows:

[32] I am required to consider the factors set out in subrule 24 (11) of the Rules which reads as follows:

24 (11) A person setting the amount of costs shall 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 lawyer’s 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.

[33] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11) (b) above). It reads as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[10] The Court agrees with the submissions of the Respondent that success on all of the temporary motions and this long motion was divided between the parties, which does support the submission that each party should bear its own costs.

[11] When the court considers all of the above-noted factors, including the offers to settle made by both parties and the results the parties achieved, I agree that the appropriate result with respect to costs should be to award no costs to either party. Both parties have made offers of settlement and both parties have refused to accept offers of settlement. It is very difficult for the Court to assess the alleged bad faith conduct of the Applicant, as such conduct is denied by the Applicant. The Court can, however, agree with the submissions of the Respondent that the answers of the Applicant on questioning, and the derogatory comments he has made against the Respondent in this litigation, would have increased the conflict in these proceedings. For all of these reasons, the court is of the view that the fairest result is to decline to award costs to either party.

Pollak J.

Date: January 25, 2016