Court File and Parties
COURT FILE NO.: FS-13-54-0002 DATE: 20171208 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
David Joseph Creasor Applicant – and – Jodi Theresa Reidl Respondent
Counsel: David Williams, for the Applicant D. Andrew Thomson, for the Respondent
HEARD: July 31 – August 4, 2017; October 10 – 13, 2017
Decision on Costs
E.J. Koke J.:
[1] This proceeding was a result of a motion to change brought by the respondent mother, Jodi Theresa Reidl, for an order granting her custody of Rosalie, as well as child support and section 7 expenses. In his Answer, Mr. Creasor requested custody of Rosalie, with access to Ms. Reidl every other weekend, and child support and section 7 expenses. The trial of these issues took place over a period of 8 days. The court heard from 21 witnesses.
[2] Mr. Creasor was substantially successful. He was awarded custody of Rosalie and although the court did not order that Ms. Reidl pay child support this was only because her income is marginal at this time. The court granted Mr. Reidl the right to bring a further motion for child support if Ms. Reidl’s employment changes.
[3] I have considered the cost submissions filed by the parties, together with Mr. Creasor’s Costs Outline.
[4] I have taken into account the factors enumerated under Rule 57 of the Rules of Civil Procedure, including the time spent, the result achieved, and the complexity of the matters, as well as the application of the principle of proportionality. In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[5] Although the court granted Ms. Reidl unsupervised access, this order was conditional on Ms. Reidl engaging in counselling, failing which access will be supervised. I note that the OCL recommended that access be supervised and in the circumstances I do not find it unreasonable on the part of Mr. Creasor to submit that access be supervised as well. The court’s decision reflects a compromise, as well as a sincere hope that Ms. Reidl and Mr. Murray refrain from making negative comments about Mr. Creasor to Rosalie. Although Mr. Murray is not a party to this action I am setting the bar very high for him…he is in a position to exercise a positive influence in what I deem to be a dysfunctional relationship between the parties, as does Mr. Creasor’s partner Ms. Nasturzio.
[6] Mr. William’s actual costs for his fees are $42,756.66, inclusive of HST. His hourly rate during the course of the proceedings ranged from $200 an hour to $290 an hour. I find this to be reasonable. I did not receive a bill of costs from Mr. Thomson. Disbursements total $805.40.
[7] I see no compelling reason to award substantial indemnity costs. Considering the above factors I have decided to award costs to Mr. Creasor in the amount of $25,000 incl. of HST plus disbursements of $805.40.
Justice E. J. Koke Released: December 8, 2017