Court File and Parties

Court File No.: FS-08-0046-02 Date: 2019 March 14 Ontario Superior Court of Justice

Between: Kelly Ann McMurter, Applicant – and – James Robert Gordon McMurter, Respondent

Counsel: Self-represented (for the Applicant) Ian McLean, Counsel for the Respondent

Heard: Written submissions

Judge: MacLeod-Beliveau J.

Costs Decision (Recusal Motion and Post-Trial Security Issues for Future Spousal Support)

[1] The applicant Kelly Ann McMurter, a self-represented litigant, seeks costs of the motions before the court against the respondent James Robert Gordon McMurter, for the post-trial security issue for future spousal support motions when Mr. McMurter was self-represented, and for costs of the recusal motion, where McMurter was represented by counsel, Mr. Ian McLean.

[2] This costs decision should be read in conjunction with my Reasons for Decision on those motions cited at McMurter v. McMurter 2018 ONSC 7604, released December 28, 2018. In that decision, the issue of costs was reserved for written submissions on or before January 31, 2019, after which date, I would determine the issue of costs.

[3] Written submissions were received from Kelly Ann McMurter dated January 21, 2019. No submissions on costs whatsoever were received from Mr. McMurter, or his counsel Ian McLean before the date of release of this decision on March 14, 2019.

[4] Mrs. McMurter seeks substantial indemnity costs for the motions on March 13, 2018, April 23, 2018, July 9, 2018 and October 11, 2018, in the amount of $2,696.48 in fees, disbursements of $508.40 plus HST of 29.40, for a total of $3,234.28. The total hours spent are claimed at $78.5 hours or $34.35 per hour.

[5] A costs order is discretionary and must be proportionate to the issues and results obtained before the court. There is a presumption that the successful party is entitled to costs. Self-represented parties are not entitled to costs calculated on the same basis as counsel. They need to demonstrate that they have done work ordinarily done by a lawyer, and that as a result, they incurred an opportunity cost by forgoing remunerative activity. Without the option of awarding meaningful costs to self-represented litigants, the court’s ability to control its processes would be greatly diminished. I have previously canvassed these legal principles in my costs decision at McMurter v. McMurter, 2017 ONSC 725, released January 30, 2017 in relation to costs of the trial held before me in 2016. These legal principles continue to apply, and I will not repeat them again here.

[6] Mrs. McMurter was the successful litigant on the recusal motion. The earlier motion that she brought when she heard that Mr. McMurter was trying to sell one of his secured properties contrary to the final orders of the court made at trial, was ultimately dismissed. It had become moot. Mr. McMurter failed to abide by court imposed terms that would have permitted the sale of one of his properties, if he paid the outstanding costs orders made by the Ontario Court of Appeal, and as well because he no longer had a buyer for his property.

[7] I have carefully considered the factors in costs as set out in Rule 24 of the Family Law Rules. This case continues to be complex and difficult and the issues are important to the parties. Mrs. McMurter was well-prepared and did the work of a lawyer in addition to the work that is expected of her as a litigant. I find that the rate of $100.00 per hour continues to be reasonable for an hourly rate. Applied to the hours spent that would total on a substantial indemnity basis $7,850.00 plus disbursements and HST.

[8] I find, however, that substantial indemnity costs are not appropriate in relation to costs of all of these motions. The March 13, 2018 attendance was to adjourn the matter to April 23, 2018. The issue of the sale of one of the secured properties was fully argued on April 23, 2018. Both parties were self-represented at that time. My decision was released May 7, 2018 and adjourned to July 9, 2018 to give Mr. McMurter the opportunity to comply with the terms set out in that decision. (See McMurter v. McMurter 2018 ONSC 2626). On July 9, 2018, Mr. McMurter sought an adjournment to October 11, 2018. A timetable was set for the delivery of materials between the parties.

[9] Prior to the October 11, 2018 date, Mr. McMurter retained counsel, Ian McLean, to bring a motion before me to recuse myself from this case. The recusal motion was argued October 11, 2018, together with the security motions which were still before the court. In my decision released December 28, 2018, I dismissed the recusal motion and dismissed the motions in relation to the security issues for the sale of one of the secured properties.

[10] In the exercise of my discretion, I award limited costs in relation to the motions about the attempted sale of one of the secured properties by Mr. McMurter. Both parties were then self-represented. Both parties held incorrect positions in relation to the final orders of the court made at trial. I spent significant time on the record reviewing their positions and what the import of the final orders at trial were in relation to the secured properties in particular. Mr. McMurter is now completely aware that in order to sell any of the four secured properties that are in his name, he must first obtain an order of the court giving him permission to do so.

[11] Mrs. McMurter is, I find, entitled to some award of partial indemnity costs for having to bring her motion to prevent Mr. McMurter attempting to sell one of the secured properties contrary to the final order of the court. This would include the court attendances on March 13, 2018, April 23, 2018, and July 9, 2018. I fix those costs at $500.00. This sum shall be enforced as spousal support by the Director of the Office of the Family Responsibility Office. A support deduction order shall issue.

[12] In addition, Mrs. McMurter was the successful litigant on the recusal motion which was dismissed. She filed detailed materials and a factum and did the work of a lawyer above that of what is expected of her as a litigant. The motion took ½ day on October 11, 2018. In the exercise of my discretion, I find that costs on a partial indemnity basis for 20 hours of preparation at $100.00 per hour is appropriate. I fix those costs at $2,000.00 for fees. Mrs. McMurter is also entitled to her disbursements of $508.40 and HST of $29.40, for a total partial indemnity cost award for the recusal motion of $2,537.80. This sum shall be enforced as spousal support by the Director of the Office of the Family Responsibility Office. A support deduction order shall issue.

[13] In conclusion, Mr. McMurter shall pay forthwith to Mrs. McMurter the total cost award of $3,037.80 ($500.00 plus $2,537.80). This total sum of $3,037.80 shall be enforced as spousal support by the Director of the Office of the Family Responsibility Office. A support deduction order shall issue.

[14] Order to issue accordingly.

Madam Justice Helen MacLeod-Beliveau Released: March 14, 2019