Superior Court of Justice – Ontario

Family Court

CITATION: McKenzie v. Smith, 2017 ONSC 6563

COURT FILE NO.: F663/10

DATE: November 2, 2017

RE: TREVOR BRENT MCKENZIE, applicant

AND: PERMELIA NOREEN SMITH, respondent

BEFORE: VOGELSANG J.

COUNSEL: Lindsay M. Abercrombie for the applicant The respondent does not appear

HEARD: written submissions filed by the applicant

ENDORSEMENT on costs

[1] I made a final order with respect to child support on July 21, 2017 which brought to an end over seven years of litigation which commenced in April, 2010. The parties had actually separated in 2001 and entered into a domestic contract. They divorced in March, 2003.

[2] At various times in the early years of the proceeding, the respondent was represented by Mr. Nyhof, but by mid-2012, she began usually representing herself on the occasions when she chose to attend court. On July 27, 2012 she was present when a final order was made – based on minutes of settlement – by Korpan J. That order granted the applicant custody of the parties’ three daughters who were then 17, 15 and 13 years of age, respectively. The respondent was granted some access if the children wished it and was precluded from initiating any fresh proceeding with respect to the children without a prior deposit of $20,000 as security for the applicant’s costs.

[3] The order of Korpan J. dealt with interim child support and directed that that issue proceed to final resolution. The respondent had failed to complete her required financial disclosure and was specifically ordered to fulfil her obligations and continue her productions. The proceeding languished.

[4] For all intents and purposes, the respondent basically disappeared soon after a further order was made on September 2, 2014 when costs of the completed custody issue were awarded against her in the total amount of $10,350. The best information available is that she lives in Key West, Florida. She still resists voluntary financial disclosure.

[5] Regarding the summary judgment motion, the fact that it ultimately proceeded on an undefended basis is of some relevance; that said, Ms. Abercrombie has reproduced the dockets for her work and that of her associates, all of which substantiate the view that the claim to be adjudicated was complex and involved three children, university expenses and retrospective support over a number of past years. All of this was complicated by a grudging, if not “stonewalled” attitude towards disclosure by the respondent.

[6] I find the hours claimed and rates charged to be reasonable and necessary under these unusual circumstances. But the question of assessment of appropriate costs to a successful party does not end there. As Whalen J. said in Feng v. Philips, 2006 CanLII 13769 (ON SC), 2006 CarswellOnt 2608 (Sup. Ct.):

42 Again, I emphasize that hourly rates reflecting the factors to be considered in awarding costs are not the "end-all" of the assessment process. They may be a guidepost or one way of measuring in the context of a broader task. I accept the Plaintiff's submission that the assessment of costs is not a mechanical exercise which begins and ends with a calculation of hours, times and rates: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) at para. 27. The ultimate objective is to fix an amount that is fair and reasonable, including to the unsuccessful party, after stepping back and taking a broader view of the appropriate and just result. Boucher v. Public Accountants Council (Ontario) [supra.]; Moon v. Sher, 2004 CanLII 39005 (ON CA), [2004] O.J. No. 4651 (Ont. C.A.); Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), [2005] O.J. No. 160 (Ont. C.A.).

[7] Ms. Abercrombie’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 CanLII 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. Smith, rather than any exact measure of the actual costs to Mr. McKenzie: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[8] I am required to step back and make an assessment of a sensible and fair result consistent with what the more unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (supra). As indicated, the costs assessment, as well, must reflect some form of proportionality to the actual issues argued, not just an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). Indeed, proportionality must always be kept in mind when considering any costs issue: Gale v. Gale, 2006 CarswellOnt 6328 (Div. Ct.).

[9] To my mind, a balanced, fair costs award to Mr. McKenzie to reflect his significant success is $13,000 inclusive of recoverable disbursements and HST. The costs of the custody and access issues having already been disposed of, the costs awarded today deal with support. They are “legal fees or other expenses arising in relation to support or maintenance” and, as such, should be enforceable by the Director. See s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (as am.); Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401 (C.A.).

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: November 2, 2017