Court File and Parties

COURT FILE NO.: D13960-13-01 (Brantford) DATE: 2019-03-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ASHLEY YVETTE CARLSON, Applicant AND: CHRISTOPHER PAUL THOMPSON, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Gerry Smits, for the Applicant Maybelline Massey, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have each delivered their submissions on costs.

[2] There is no dispute that the applicant was the successful party at trial, as the respondent’s motion to change was dismissed based upon a finding that there had been no material change in circumstances. The respondent does not dispute that the applicant is entitled to an award of costs.

Position of the Parties

[3] The applicant seeks costs on a full indemnity basis in the sum of $41,687.70, together with an additional $750 plus HST of $97.50 for preparation of costs submissions for a total of $42,535.20. This amount is comprised of Mr. Smits’ accounts of $28,666.30 plus the applicant’s former counsel’s accounts in the sum of $13,021.40. These amounts are inclusive of fees, HST on fees and disbursements and HST.

[4] Mr. Smits was retained by the applicant in late July, 2018, prior to the argument of the long motion before Justice Milanetti and the holding of the trial management conference which took place thereafter.

[5] Mr. Smits points out that, at all times during the course of the respondent’s motion to change, the applicant’s position was simply that it should be dismissed. Her position was that access to the respondent should continue as per the original order of Justice Hambly, including alternate weekend access and that additional holiday access for the respondent should be provided.

[6] The issue involved in the motion to change was critical to the applicant as the respondent sought custody of the children and that their principal residence be with him, with severely curtailed access to the applicant.

[7] Mr. Smits further submits that the applicant’s claim for costs includes a reduction in his accounts by a total of $8,320 and is therefore to be considered reasonable.

[8] Ms. Massey, for the respondent, submits that he behaved reasonably at all times during the course of the litigation and that a trial of the matter was necessary. She points out that during the time that the applicant’s former counsel was involved, there were no endorsements by the court in which costs were ordered or which indicated that the costs were to be reserved to the trial judge. Accordingly, she submits that the applicant’s costs relating to any step prior to trial ought not to be taken into consideration.

[9] The respondent submits that the amount of costs as claimed by the applicant did not reflect an amount that would have been reasonably expected by him. Ms. Massey points to the respondent’s Bill of Costs which provides for fees of $23,520 HST thereon in the sum of $3,057.60 for a total of $26,577.60.

[10] The respondent submits that the requirement that he pay substantial costs to the applicant would cause him financial hardship and reduce the amount of money available to him for the children while they are in his care.

[11] By way of reply, Mr. Smits submits that it was anticipated by both parties that the issue of costs relating to the long motion before Justice Milanetti would be decided following trial and that the applicant’s former counsel spent time which is properly recoverable as preparation for trial, notwithstanding that there were no endorsements on earlier steps ordering costs or reserving costs to the trial judge.

[12] The applicant also points out that the respondent has not included any medical information as to when he is likely to return to work as a police officer. Moreover she submits that she herself has a very limited income earning far less than the respondent and has significantly less ability to shoulder financial loss and costs incurred in the trial than the respondent does.

Guiding Principles

[13] Pursuant to subrule 24(1) of the Family Law Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behaviour in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) at para. 42).

[14] Rule 18 deals with the impact of offers to settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that, unless the court orders otherwise, a party who makes an offer at least seven days before the trial, and obtains an order as favorable as, or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery of costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[15] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of subrule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[16] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[17] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Discussion

[18] I do not accept the respondent’s submission that the respondent acted reasonably throughout. As pointed out in my Reasons for Judgment, the respondent’s position in his Motion to Change and in his opening statement at the commencement of the trial was that he should have sole custody of the children and that the applicant's contact with them should be limited to two visits per week, that is on Tuesdays after school for three and one-half hours and on Sundays for 9 hours. The respondent's position provided for no overnight visits by the children with the applicant, and no vacation, holiday or special occasion time with her.

[19] The respondent’s acceptance of the recommendation of the OCL clinician, Mr. To, with respect to access by the applicant was presented as an alternative position only. It was only following the completion of the evidence at trial that the respondent adopted the position of Mr. To respecting access for the applicant.

[20] In my view the maintenance of a position that the applicant be denied any overnight visits with the children and should be denied any vacation, holiday or special occasion time was manifestly unreasonable given the amount of time that had passed since Justice Hambly’s order granting custody and principal residence of the children to her. In contrast, the position of the applicant was eminently reasonable as she sought to encourage continued and enhanced access to the respondent.

[21] There is no basis to suggest that the applicant is in a better position to shoulder the costs of the trial than is the respondent. Indeed, it is evident that the respondent has a higher income than does the applicant. This is not a case for the reduction of an award of costs due to financial hardship.

[22] In my view, the respondent’s Bill of Costs is not significantly different in magnitude from the costs sought by the applicant. A major difference appears to be the higher hourly rate of Mr. Smits by reason of his longer experience at the bar. I find that the costs sought by the applicant should have been within the reasonable expectation of the respondent.

[23] The objective in crafting an award of costs is to arrive at a figure which would be reasonable in all the circumstances of the case.

[24] I would reduce the amount of the applicant’s previous counsel’s accounts by approximately 50% and Mr. Smits’ accounts by approximately 10% and award costs to the applicant in the sum of $32,310.

Disposition

[25] It is ordered that the respondent pay to the applicant costs in the sum of $32,310, inclusive of fees, disbursements and HST. This amount is to be paid within 30 days hereof.

D.A. Broad, J. Date: March 22, 2019