COURT FILE NO.: 70-07 (01)

DATE: 2019 08 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joseph MacDonald Wright, Applicant

AND:

Catherine Rose Lehman, Respondent

BEFORE: Conlan J.

COUNSEL: Carol Allen, Counsel for the Applicant

Catherine Rose Lehman, Self-Represented

REASONS FOR DECISION ON COSTS

I. Introduction

[1] In June 2019, in Owen Sound, this family law proceeding was tried over two days. There were only two witnesses – the parties themselves.

[2] The trial actually commenced about one year earlier, in Walkerton, but it was interrupted before mid-day because Ms. Lehman complained that she was medically unable to participate in the hearing.

[3] That false start was followed by numerous Court attendances aimed at getting the case back on the rails. Finally, Ms. Lehman attended for trial in June 2019, although she asked for yet another adjournment at that time, which request was denied.

[4] As this Court stated in its Judgment, this was a long-term common law union. There are two adult children of the relationship, both estranged for many years from their mother, Ms. Lehman. The parties are both in their late fifties. Mr. Wright is much better off financially than Ms. Lehman, although he also has single-handedly supported the children. He is self-employed in the technology sector. Ms. Lehman is not employed, but for some occasional pet-sitting. She is plagued by physical and mental health difficulties. She has been in receipt of spousal support for many, many years.

[5] Mr. Wright brought a very simple Motion to Change regarding support. Ms. Lehman responded with a convoluted list of asks.

[6] In large part, almost without exception, Mr. Wright was successful after trial. All of the relief claimed by Ms. Lehman was dismissed.

[7] Specifically, Mr. Wright succeeded on his claim that he overpaid child support in the amount of $63,740.00. And on his claim that Ms. Lehman owes $15,172.00 in child support. And on his claim that Ms. Lehman owes money on account of section 7 expenses for the children, although this Court reduced the sum to $5330.00. And on his claim that he has overpaid spousal support. Finally, although this Court did not terminate spousal support on a go-forward basis because of Ms. Lehman’s obvious need for it, but rather ordered that it continue in the amount of $2001.00 monthly, this Court accepted the income figures for the parties as suggested by Mr. Wright.

[8] The parties were asked to attempt to settle the issue of costs, although I suspected at the time that the effort may be futile. It was. Written submissions have been filed on behalf of Mr. Wright. Nothing was filed by Ms. Lehman. Given her health issues and her self-representation, this Court waited well past the deadline for same before releasing the within decision.

[9] These principles apply to the decision on costs: (i) in deciding entitlement, this Court shall remember the presumption that a successful party deserves some costs, and, further, I must consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; and (ii) in deciding quantum of costs, this Court ought to remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not subject to a microscope) the reasonableness of the time spent and the fees and disbursements charged.

[10] Emphasis must be placed on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement, and to sanction and deter inappropriate conduct by litigants.

II. Decision

[11] Mr. Wright, clearly entitled to costs given his substantial success at trial, requests costs on a substantial indemnity scale in the total amount of $40,675.87.

[12] There is nothing unreasonable about the time dockets or the hourly rates charged by Mr. Wright’s counsel, a very experienced lawyer who specializes in family law.

[13] Without question, even accounting for her health issues, Ms. Lehman caused this trial to stretch over a much longer period of time than necessary and, once it actually recommenced in June 2019, take longer than necessary to complete. She ought to have asked for an adjournment of the trial before everyone was assembled in Walkerton for that first scheduled day of the hearing way back in 2018. She ought to have done much more to prepare herself for the trial once she was told, point blank, by another judge around Christmas 2018 that the trial would continue in Owen Sound in June 2019, some six months later. And she ought to have spent less time at trial in June 2019 focussing on the state of her home, which had virtually nothing to do with the issues to be decided.

[14] Substantial indemnity costs are justified in this case. On account of (i) Ms. Lehman’s health issues and (ii) the already detrimental financial consequences of the Judgment on Ms. Lehman, however, I will temper the award to a figure mid-way between partial indemnity and substantial indemnity. Mr. Wright’s written submissions reflect that figure to be $35,000.00, approximately.

[15] This Court orders that Ms. Lehman shall pay to Mr. Wright costs in the total all-inclusive amount of $35,000.00.

Conlan J.

Date: August 12, 2019