Court File and Parties
Court File No.: FS 68/16 Date: 2019/04/26
Ontario Superior Court of Justice
Between:
M.B. Self-represented Applicant (Responding Party)
- and -
S.K.(K.)B. Respondent (Moving Party)
Counsel: Nathalie G. Fortier, for the Respondent/Moving Party
Parties (also in application): B.H. D.H.
Before: The Honourable Justice T. Maddalena
Costs Endorsement
[1] I heard this summary judgment motion at Welland, Ontario on January 31, 2019. I released my decision on March 20, 2019, granting the respondent’s (moving party) request for summary judgment. I have now received and reviewed the costs submissions of both the applicant and the respondent.
[2] The respondent was the successful party on the summary judgment motion.
[3] The respondent claims in her bill of costs, costs for both herself and her parents, B.H. and D.H., who are also parties in the application. The costs claimed are as follows:
Total for partial indemnity: $44,433 Total for substantial indemnity: $59,244 Total for full indemnity: $74,055
[4] The applicant, Mr. M.B., claims $18,915 for costs, which appears to represent the costs for his prior counsel.
[5] Rule 24(1) of the Family Law Rules states that there is a presumption that a successful party is entitled to costs of a proceeding.
[6] Further, costs are in the discretion of the court (Courts of Justice Act, s. 131).
[7] Rule 24(12) of the Family Law Rules provides the court with a list of factors for the court’s consideration in setting the amount of costs. Rule 24(12) states as follows:
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[8] Neither the applicant nor the respondent made offers to settle that would bring matters within the parameters of Rule 18(14).
[9] However, there is correspondence from the respondent dated August 23, 2017, February 20, 2018, July 6, 2018 and August 1, 2018 suggesting some resolution of the main issue of the applicant’s access to the two children.
[10] However, this litigation was also further prolonged by the actions of the respondent (conviction for impaired driving), which led to the children being removed from her care and being placed in the care of the H.’s by Family and Children’s Services of Niagara.
[11] The Court has recently ruled in Beaver v. Hill, 2018 ONCA 840, that while costs are discretionary to the court, two of the most important principles in the exercising of discretion are reasonableness and proportionality.
[12] The Court in Beaver v. Hill, stated at para.11 as follows:
There is no provision in the Family Law Rules that provides for a general approach of “close to full recovery costs” …
[13] In para. 12 of Beaver v. Hill, the Court states:
As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.
[14] In this proceeding I find the behavior of the applicant also contributed to prolonging the litigation. The applicant suffered a drug relapse during the proceeding. (This was admitted by him.) As a result, supervised visitation by his family with the children did not go well.
[15] Subsequently, supervised visits were ordered through the SVEN program at Pathstone. Instead of proceeding with visits, the applicant left the province of Ontario to go to Nova Scotia. He stated that this was to receive drug treatment in Nova Scotia. Consequently, he did not attend a court proceeding in Ontario, failed to inform the court that he was leaving for Nova Scotia, and filed no documents for that hearing. Furthermore, he failed to inform the respondent, although she did find out later that the applicant had left and was in Nova Scotia.
[16] This precipitated the respondent bringing the summary judgment motion which was ultimately granted by this court.
[17] It is clear to this court that the applicant is not entitled to costs.
[18] The issues dealt with by the court were of great importance as the issues related to the best interests of the two children of the marriage. However, the issues were not complex and did not involve expert evidence.
[19] Further, the determination of the applicant’s income for support purposes was not a complex issue, but the applicant did make it more difficult by not cooperating at least initially with the necessary disclosure.
[20] Counsel for the respondent (moving party) was called to the Bar of Ontario in 2001. Counsel’s hourly rate is reasonable. Counsel further states that she spent approximately 25.5 hours in preparation for the summary judgment motion on behalf of Ms. S.K.(K.)B.. I find that is reasonable, as are the disbursements of approximately $352.00 (rounded), subject to the comments below.
[21] Counsel for the respondent was also counsel for Mr. and Mrs. H.. I accept that there is duplication and overlap in the evidence and preparation of the respondent and Mr. and Mrs. H.. There would also be duplication in the preparation for the summary judgment motion. However, the amounts sought by the respondent are beyond what the applicant could reasonably be expected to pay.
[22] Costs are not meant to be a full recovery. Costs are meant to be reasonable and proportionate and fair for the parties. They are meant to take all circumstances of the parties into consideration.
[23] However, litigants must also understand that their choices may come with cost consequences. They are not free to simply conduct litigation as they wish without the possibility of an adverse costs order.
[24] Taking into consideration those factors enunciated in Rule 24(12) and the principles of reasonableness and proportionality for a summary judgment motion, I conclude that an appropriate award of costs payable by the applicant to the respondent is $18,000 all-inclusive, payable to the respondent within 90 days.
[25] The respondent asks that the entirety of the costs award be deemed as child support. I do not agree. Only a small portion of time at the hearing pertained to the actual child support issue. I order that of the award of $18,000, the amount of $3,000 be enforceable as child support by the Family Responsibility Office.
Orders Made
[26] The following orders are made:
- The applicant shall pay to the respondent costs of the summary judgment proceeding fixed at $18,000 all-inclusive and payable within 90 days.
- Of the $18,000 referenced above, the amount of $3,000 shall be enforceable as child support by the Family Responsibility Office.
- A support deduction order shall issue.
Maddalena J. Released: April 26, 2019