CITATION: Easson v. Blase, 2017 ONSC 3713

COURT FILE NO.: FS-10-360434-0004

DATE: 20170615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LARISSA LOUISE EASSON, Applicant

A N D

DR. FRIEDRICH RUDOLF BLASE, Respondent

BEFORE: MESBUR J.

COUNSEL: Derek Ground, for the applicant, for this motion only

The respondent in person

HEARD: in writing

C O S T S E N D O R S E M E N T

[1] On May 15, 2017 I released my endorsement on the applicant’s motion to strike, stay or dismiss the respondent’s motion to change. The applicant’s motion was argued on the basis the respondent was in significant breach of prior orders, particularly costs orders. Alternatively, and additionally, she moved to strike on the basis the current motion to change is frivolous and vexatious and an abuse of the court’s process. She sought summary judgment dismissing the motion to change as a result. In the further alternative, the applicant asked to have the father declared a vexatious litigant. In each of these instances she asked that the father’s motion to change be stayed, and the father be prohibited from bringing further motions without first obtaining leave from the court. Alternatively, the mother requested that the father be required to provide security for costs as a precondition to proceeding further in this court.

[2] I granted the applicant’s motion in part on the following terms:

a) Within 30 days of the release of these reasons, the father shall pay to the mother the outstanding accrued interest of $2,353.61 owing on the trial costs order;

b) Within 30 days of the release of these reasons, the father shall pay the sum of $70,000 into court to the credit of this motion to change as security for the mother’s costs;

c) Within the 30-day period outlined in (a) and (b) above, father is prohibited from taking any further steps of any kind in this motion to change;

d) If the father fails to comply fully and completely with paragraphs (a) and (b) above, his motion to change is stayed, and he is prohibited from taking any further steps in the motion to change, or bring any motions of any nature or kind without first obtaining leave of this court to do so, even if he pays the sums set out in (a) and (b), above, but after the 30-day period specified;

e) The mother’s motion to declare the father a vexatious litigant and this proceeding a vexatious proceeding is dismissed, but without prejudice to its being renewed at a later date;

f) If the father fully and completely complies with paragraphs (a) and (b), above, then the mother shall have 45 days from the date of the father’s compliance to deliver an amended response to the motion to change;

g) If, and only if, the mother delivers an amended response as contemplated by (f), above, the father may reply to it, provided his reply is strictly limited to replying only to new matters raised in the mother’s amended response. The father’s reply, if any, shall be limited to no more than 10 pages in length, including attachments or exhibits. It shall be delivered within 14 days of his being served with the mother’s amended response, failing which he shall be prohibited from delivering a reply;

h) If the motion to change proceeds pursuant to compliance with (a), (b), (f) and (g), above, the parties will schedule a combined settlement/trial management conference to schedule necessary next steps. Apart from the potential motion contemplated by (e), above, no further motions prior to the hearing of the motion to change shall be permitted without leave of the court.

[3] I invited the parties to resolve the issue of costs of the motion on consent. They were unable to do so. I have now received their costs submissions.

[4] The mother claims “substantial” success on the motion, and asks for costs of $12,687.06. This figure includes both 9 hours of her lawyer’s time, at $500 per hour (plus HST) for arguing the motion, as well as 23 hours of her own time for preparation of materials and so on. For her own time, the applicant has asked for $225/hour, which was the amount McWatt J accepted as appropriate when fixing costs of the trial on the father’s first motion to change. The mother claims an additional amount for 2.75 days of “vacation credits”, for which she has claimed at $760 per day. These amounts, plus modest disbursements of $707.06, make up to total claimed.

[5] The respondent argues first, the applicant did not enjoy “substantial” success on her motion. At best, he says success was “mixed”. He points out the applicant’s motion contained 8 principal claims for relief, and 3 alternative claims. She only fully succeeded on one.

[6] Second, the respondent submits that as principally a self-represented litigant, the applicant should only be entitled to costs for her own time if she can show financial dislocation or lost opportunity. He argues she can show neither, and should receive no costs for her own time, or only minimal costs on that account.

[7] Last, the respondent argues that in claiming 2.75 days of “vacation credits” the applicant is essentially double counting time, and she should not be allowed to monetize this twice.

[8] To some extent, I accept the respondent’s arguments. The applicant did not enjoy substantial success overall, although the real issue, as argued, was whether the respondent’s motion to change would be stayed. Various alternative bases for this were argued. I accepted one. That being said, I dismissed the request to declare the respondent a vexatious litigant, but without prejudice to its being renewed at a later date.

[9] As I see it, however, the mother’s motion was absolutely necessary, first, to compel compliance with orders that had long been outstanding, and second, to provide security for father’s current motion to proceed. She is entitled to costs, but only on a partial recovery basis.

[10] I agree there should be no award for “vacation credits”, and reduce the bill of costs by this amount. The mother’s claim for her lawyer’s time to argue the motion appears to be on a full recovery basis. That aspect of the bill must be reduced to reflect partial recovery only. I award about two thirds of the amount claimed, namely $3,400 (rounded).

[11] As to the mother’s claim for costs for her own time, I do not read the law as narrowly as the respondent argues. It has long been the case that a self-represented litigant is entitled to costs.[^1] As the applicant points out, “it is more important in family law that meaningful costs awards are available to self-represented parties. There are substantial personal, family and professional consequences to being constantly litigated against in such a context.”[^2] While the respondent is technically correct that this motion was the mother’s motion, not his, it arose directly out of his current motion to change.

[12] Taking all these factors into account, I award some costs for the mother’s time taken in preparing materials, but not the full amount claimed. The mother is entitled to $2,000 to compensate her for her own time.

[13] The disbursements claimed are modest, at $707.06, and I accept them.

[14] Thus, the applicant shall have her costs of the motion, fixed at $6,100 (rounded), all in. These costs may be satisfied out of the funds father is required to post as security for costs, as set out in paragraph 67(b) of my endorsement on the motion. This order shall constitute sufficient authorization and direction to the Accountant of the Superior Court of Justice to pay the sum of $6,100 to the applicant out of the funds the respondent father pays into court as security for costs pursuant to my order of May 15, 2017.

MESBUR J.

Released: 20170615

[^1]: Fong v Chan, 1999 2052

[^2]: Applicant’s costs submissions date May 29, 2017 at paragraph 7