Court File and Parties

Court File No.: D13866/12 Date: 2016-09-22 Superior Court of Justice - Ontario

Re: AMANDA LEIGH-ANN SMITH, Applicant And: ANDREW RICHARD ROBERT SMITH, Respondent

Before: The Honourable Mr. Justice D.A. Broad

Counsel: David Maltby, for the Applicant Caitlin Elizabeth Murray, for the Respondent

Costs Endorsement

[1] The Parties have been unable to settle the question of costs and have now delivered their submission on costs.

Positions of the Parties

[2] The respondent submits that he was successful with respect to the issue of Sunday access. With respect to the issue of section 7 expenses the respondent says that the applicant acted unreasonably by failing to disclose particulars of the section 7 expenses which she claimed until less than 24 hours prior to the commencement of trial, notwithstanding the order of October 9, 2015 of Kent, J. requiring disclosure within 40 days and numerous a follow-up attempts by counsel for the respondent to obtain disclosure. The material presented by the applicant at trial was disorganized and incomplete. The respondent says that had the applicant complied with the order the hearing would have been limited to evidence regarding whether or not it was in the children’s best interests to attend activities on Sundays. The respondent seeks costs in the total sum of $3643.82 comprised of fees in the sum of $3202.50, HST thereon in the sum of $416.32 and office disbursements in the sum of $25.

[3] The applicant claims that she was successful in the proceeding and seeks costs on a partial indemnity basis in the sum of $1500.

Guiding Principles

[4] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that “subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[5] Pursuant to sub rule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Sub rule 24 (4) provides that despite sub rule (1) a successful party who has behaved unreasonably during the case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. Sub rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party’s behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) (2003), 67 O.R. (3d) 181 (Ont. C.A.), at para. 42).

[6] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, [2009] O.J. No. 1887 (Ont. S.C.J.), at para. 4, citing Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756, at para. 13, it was held that, for the purpose of r. 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.), at para. 24).

[8] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs; must be consistent with what the unsuccessful party might reasonably have expected to have to pay; and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, 2013 ONSC 5928, at paras. 5 and 6 and the cases therein referred to).

Analysis

[9] There were two issues requiring resolution at the trial, namely, section 7 expenses, including arrears thereof, and whether the respondent should be required to take the children to extracurricular activities arranged by the applicant during his access time with the children on Sundays. The respondent was successful with respect to the second issue.

[10] With respect to the first issue regarding section 7 expenses I find that the applicant acted unreasonably by not complying with the order of Kent, J., ignoring repeated requests from counsel for the respondent for disclosure of particulars of the section 7 expenses, not providing disclosure until less than 24 hours before the trial, and presenting the material at trial in an unorganized and virtually unintelligible fashion. These actions prevented the respondent from serving a meaningful and informed offer to settle with respect to section 7 expenses. He was left to serve his Offer to Settle in a vacuum with respect to section 7 expenses. The unreasonable conduct of the applicant also prolonged the trial.

Disposition

[11] I find that the respondent, in light of the foregoing, is entitled to costs. I find the amount of costs claimed by the respondent to be reasonable in all the circumstances. It is therefore ordered that the applicant pay to the respondent costs fixed in the sum of $3643.82. This amount is to be paid within 30 days hereof.

D.A. Broad J.

Date: September 22, 2016