COURT FILE NO.: FC-20-191-0000
DATE: 20210324
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Laura Lynn Boyle, Applicant
AND:
Edward Alan Stocker, Respondent
BEFORE: Justice L. Sheard
COUNSEL: Rachel Eddy, for the Applicant
Emma Brown, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT ON RESPONDENT’S MOTION
Overview
[1] The respondent, Edward Allen Stocker (“Stocker”), moved successfully to set aside the restraining order against him granted on December 3, 2020 to the applicant Laura Lynn Boyle (“Boyle”). Boyle had brought her motion without notice to Stocker. The restraining order was set aside following a hearing on notice and on a full record.
[2] The parties were invited to make written costs submissions. These have been received and considered by the court in determining costs.
Positions of Parties
[3] Stocker seeks his costs on a full indemnity basis in the amount of $2,440.80, inclusive of HST.
[4] Stocker submits that full indemnity costs are justified because Boyle acted unreasonably, as demonstrated by the following:
(a) Boyle’s motion was brought without notice in circumstances that were not urgent and she acted unreasonably in doing so: see Lee v. Belperio, 2012 ONSC 6389, at paras. 20-21; and
(b) Boyle also acted unreasonably in representing on her motion that she would maintain the costs of the jointly-owned home, which she failed to do, imposing a financial burden on Stocker.
[5] Stocker states that there must be cost consequences for unreasonableness: see Lee, at para. 21, citing Parsons v. Parsons (2002), 2002 CanLII 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.), at para. 14.
[6] Boyle acknowledges that Stocker, as the successful party on the motion, is presumptively entitled to recover “some amount” of his legal expenses.
[7] In response to Stocker’s submissions, Boyle submits as follows:
(a) that she had acted reasonably in bringing her motion and in seeking a restraining order;
(b) that Stocker’s refusal to change the utilities into Boyle’s name impaired her ability to pay the home’s expenses;
(c) that she had no opportunity to respond to evidence put before the court in Stocker’s second affidavit, dated February 19, 2021, which contained “a gross manipulation/mischaracterization of facts”;
(d) that her conduct, which was criticized by Stocker in his affidavit, was in response to Stocker’s “initial antagonisms” of Boyle and that “both parties have engaged in hurtful and antagonistic behaviour towards the other”; and
(e) that she is of limited means and that the stress of this “ordeal”, combined with her health conditions, has resulted in multiple absences from work, following the hearing of the motion.
[8] Boyle states that she tried to settle the costs of this motion by offering to pay $1,200 and then $1,500. Neither offer was accepted. Boyle asks that costs be awarded to Stocker in the range of $500 and $1,000, to be paid from Boyles’s share of the sale of the home or, alternatively, that Boyle be given no less than 90 days to pay.
Factors
[9] The factors to be considered when fixing costs are set out in r. 24 of the Family Law Rules, O. Reg. 114/99, and include that the successful party is presumptively entitled to costs and that the court shall consider the reasonableness of each party’s behaviour, any offers to settle, any acts of bad faith, the importance, complexity or difficulty of the matter, the scale of costs, the hourly rates and time spent, and the reasonable expectations of the losing party.
Success
[10] Stocker was the successful party.
Complexity and Importance
[11] The legal issues were not overly complex. The motion was very important to Stocker, who was displaced from his home as a result of the restraining order.
Unreasonable Behaviour or Bad Faith
[12] To the extent that Boyle’s submissions address the merits of the motion, they conflict with the findings set out in my Endorsement: see paras. 58-60, and 64-66.
[13] Based on my findings on the motion, I conclude that Boyle acted unreasonably in bringing the motion without notice and in failing to then provide the court with a full evidentiary record. As outlined in my Endorsement, Stocker’s evidence not only contradicted Boyle’s evidence but, in part, supported a finding that Boyle was aggressively trying to force Stocker out of the home. By moving for the restraining order without notice in December 2020, the predictable result was that the restraining order would leave Boyle with exclusive possession of the home over the Christmas season, if not longer.
Hourly Rates, Time Spent and Proportionality
[14] Boyle and Stocker each provided a Bill of Costs. Boyle has not contested the hourly rates charged or the time spent by Stocker’s counsel, which are comparable to Boyle’s. I conclude, therefore, that the costs claimed by Stocker are within an amount that Boyle could reasonably have expected to pay.
Scale of Costs
[15] Given my finding that Boyle acted unreasonably, I am of the view that Stocker is entitled to an award of costs that is somewhat higher than partial indemnity costs.
[16] I have considered Boyle’s submission respecting her limited means and note that a party’s ability to pay costs is not a factor recognized by r. 24.
Disposition
[17] In consideration of the above factors and in the exercise of my discretion to fix costs, I fix Stocker’s costs at $2,000, inclusive of HST.
[18] The costs are to be paid by Boyle within 90 days of the date of the release of this decision, or from Boyle’s share of the sale proceeds of the parties’ home, whichever occurs first.
L. Sheard J.
Date: March 24, 2021
COURT FILE NO.: FC-20-191-0000
DATE: 20210324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laura Lynn Boyle
Applicant
- and –
Edward Alan Stocker
Respondent
COSTS DECISION
L. Sheard J.
Released: March 24, 2021