Court File and Parties

COURT FILE NO.: FS-14-397600 DATE: 20201221 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Zrymiak, Applicant AND: Anthony McNamee, Respondent

BEFORE: Kiteley J.

COUNSEL: Christine Vanderschoot, counsel for the Applicant S. Lawrence Liquornik, counsel for the Respondent

HEARD: in writing

COSTS ENDORSEMENT – MOTION HEARD OCTOBER 8, 2020

[1] On October 8, 2020, I heard submissions on the Respondent’s motion for a stay of the order made by Nishikawa J. dated September 28, 2020. [ONSC 5850] In an endorsement dated October 14, 2020, I dismissed the motion and set a timetable for submissions as to costs. [ONSC 6210]

[2] The Applicant asked for full recovery costs in the amount of $11,378.82 plus costs of $1500 for making the submissions. The Respondent acknowledged that the motion was not successful but took the position that costs in the range of $3000 plus HST would be reasonable. His counsel filed an affidavit of his legal assistant in which she deposed that, on October 28, 2020, the Respondent’s employment was terminated. The legal assistant also reported having been advised that the Respondent is “in difficult and strained financial circumstances as a result”. The Applicant provided reply submissions, particularly on the Respondent’s allegation of bad faith.

[3] The Respondent was not successful in his motion and, pursuant to rule 24(1), the Applicant is presumptively entitled to costs.

[4] The bill of costs on behalf of the Applicant indicates that her counsel spent 24.5 hours at $395 per hour and, along with minor other services by people in her office, the total fees including HST are $11,378.82.

[5] The Respondent takes the position that that bill of costs is excessive. His bill of costs includes 8.7 hours at $495 per hour for a total including disbursements and HST of $4,866.35.

[6] The motion before Nishikawa J. was brought for an order allowing the Applicant to move with their 8 year old daughter to Kemptville, Ontario. The Applicant did not succeed in obtaining a final order but was successful in obtaining an interim order until the end of the current school year. The Respondent filed a motion for a stay pending the hearing of his motion for leave to appeal. Counsel for the Applicant had to respond quickly and under a deadline to the motion for stay by serving and filing a responding affidavit, by preparing a factum and book of authorities and attending and making submissions. Having been successful on the motion for an interim order, it was important to the Applicant that her counsel make appropriate efforts to sustain the success. If a stay had been granted, it would have delayed the implementation of the interim order potentially for 2 to 4 months and, in any event, would have likely been a barrier to the Applicant continuing to enrol the child in the school in Kemptville and, by necessity have her attend school in Toronto. Given the immediacy and the importance of the motion for stay pending the hearing of the motion for leave to appeal, I am satisfied that those costs are reasonable.

[7] The parties did exchange offers to settle. The day before the motion, the Respondent made an offer that an order be made for a stay that would require the child to be enrolled in the school in Toronto. On the morning of the stay motion, the Applicant made an offer that the motion for stay be dismissed and the Respondent pay costs of $3,000. Offers are always encouraged. Offers on the eve of and the morning of the motion are of less weight. But, in this case, offers are of little impact. This was an all or nothing motion for a stay. Compromises, even over costs, are rarely achievable.

[8] The parties each made submissions about the behaviour of the other party and how that should impact on costs. Nishikawa J. made an observation about the Applicant’s conduct that has no impact on the decision I make as to costs. In his affidavit sworn September 30, 2020, the Applicant described conversations with their daughter on which he relied in support of the motion for a stay. If true, that evidence might have been compelling. In paragraph 24 of the endorsement dismissing the motion for a stay, I observed that that evidence was irreconcilable with factual and unchallenged evidence of the Applicant that the Respondent could not have spoken with the child at the time he said he did. I agree with the Applicant that such conduct is unreasonable and ought to be sanctioned by a higher cost award against him. However, I am not satisfied that his behaviour constitutes bad faith.

[9] As indicated above, the Respondent’s circumstances had changed shortly after the stay motion was dismissed in that he was terminated and, according to the “information and belief” by the legal assistant, he reports that he lost his job because of his “distraction, upset and dedication of time away from his employment to the legal proceedings herein”. On that basis, his counsel asked that the Respondent be permitted to pay the suggested amount of $3000 plus HST on “an incremental basis” at the rate of $500 per month. It is the case that, pursuant to rule 24(12)(b), the financial circumstances of the payor and the recipient may have an impact on the amount of costs awarded or the terms of payment. I understand how the Respondent was committed to trying to keep the child in Toronto for the school year. But, having not been successful in the motion allowing the Applicant to move on an interim basis, for which costs were ordered against him in the amount of $3000 he had to know that there was risk associated with bringing a motion seeking a stay pending the hearing of his motion for leave to appeal. He had to expect that he was exposed to another order for costs if not successful.

[10] I am not persuaded that payment on a “full recovery” basis is appropriate. Pursuant to rule 24(8), full recovery costs are mandated when the court finds bad faith. I have not done so.

[11] Leaving aside the offers to settle, this is a case where a significant portion of full recovery costs, namely 75%, would be proportionate to the Applicant’s success, would serve to indemnify her on an important step, would discourage and sanction the unreasonable behaviour by the Respondent and would ensure that the case is dealt with justly. I take the same approach to the costs related to the submissions.

[12] As indicated, the Respondent asks that he be permitted to pay the costs in instalments. I am not prepared to make that order. The order by Nishikawa J. is an interim order, time-limited to this school year. There will be future steps in the case, as indicated by Nishikawa J. in paragraph 45(i) and in my endorsement at paragraph 28. I do not want this costs order to be a barrier to the Respondent continuing to participate in the case.

ORDER TO GO AS FOLLOWS:

[13] The Respondent shall pay costs to the Applicant arising from the motion for a stay pending the motion for leave to appeal fixed in the amount of $8,475 including fees, disbursements and HST and for costs of the submissions in the amount of $1,125 including HST.

[14] The Applicant may not rely on a failure to pay some or all of those costs as a basis to ask that, pursuant to rule 1(8) the Respondent be excluded or restricted from participating in the case.

[15] This endorsement is an order of the court enforceable by law from the moment it is released. Counsel may also forward an approved, draft order to my attention for signing.

Kiteley J.

Date: December 21, 2020