Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: TRACY MARIE GORE, applicant
AND:
JEFFREY GORE, respondent
BEFORE: VOGELSANG J.
COUNSEL: Leonard G. Reich for the applicant Meredith Rady for the respondent
HEARD: written submissions filed
ENDORSEMENT ON COSTS
1I dismissed Ms. Gore’s various claims for temporary relief in written reasons dated November 9, 2016 and subsequently received submissions concerning costs.
2The facts surrounding the motion were remarkable in their manifestation of the financial disadvantages with which this family has struggled for so long. In the end, there was no interim relief I could order which would have amounted to a benefit to either party.
3From a practice point of view, Mr. Gore achieved complete success and Ms. Rady’s client is entitled to his costs, but the quantum to be paid must reflect the factors in r. 24(11) of the Family Law Rules, O. Reg. 114/99, viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid by Ms. Gore, rather than any exact measure of the actual costs to Mr. Gore: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).
4Of most importance in this case is Ms. Gore’s limited ability to pay. While she works as hard as she can, she is severely fettered by the financial burdens which afflict both the parties. In Stephenson v. Thomas, 2015 ONCJ 5 (Ont. Ct.), Sherr J. affirmed the importance of consideration of a party’s ability to pay in C.A.M. v. D.M., supra and pointed out:
A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs, particularly when they have acted unreasonably and are the author of their own misfortune. See: Snih v. Snih, 2007 CarswellOnt 3549 (Ont. S.C.J.). The mother is of fairly modest means, earning about $44,000 per annum. This order shall provide that she may repay costs in an affordable manner.
5On these facts, it is difficult for me to find either overt unreasonable conduct on the part of Ms. Gore or an indication that she has been more responsible than Mr. Gore for the parties’ financial woes which led to their predicament.
6To my mind, a balanced, fair costs award to Mr. Gore reflecting his success is $1,250 inclusive of recoverable disbursements and H.S.T. The costs are to be paid at the rate of $25 monthly commencing March 1, 2017.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Date: March 6, 2017