COURT FILE NO.: FC-19-2475
DATE: 2021/04/13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Barbara Hutchings, Applicant
AND
Caitlin Murdock-McDougall
Mathieu Dwayne Marcotte, not present, Respondents
BEFORE: Mackinnon J.
COUNSEL: Joan Rothwell for the Applicant
Sonia Smee for the Respondent, Caitlin Murdock-McDougall
HEARD: In Writing
costs ENDORSEMENT
[1] On March 11, 2021 I dismissed a motion brought by the applicant who was seeking access to her granddaughter some six weeks prior to the trial of her application for the same relief. My reasons are found at 2021 ONSC 1848. At paragraph [13] I awarded costs to the respondent in any event of the cause. Counsel did not agree on the amount of the costs and have made written submissions to me.
[2] The respondent asks for full indemnity costs. According to her Bill of Costs these total $5,968 including fees and HST. In support of full indemnity, the respondent says the applicant acted unreasonably in bringing the motion so close to trial. I agree. She also says that seeking some contact prior to trial amounted to bad faith. I disagree. The respondent had permission to bring the motion provided she did so in a clearly defined time frame, after which the permission was retracted. She missed the deadline by a few days, and I held her to the strict terms on which the permission was granted.
[3] The respondent is clearly not entitled to full indemnity costs. The Ontario Court of Appeal has weighed in on this issue in two recent cases. In Beaver v. Hill, [2018] ONCA 840 that Court held at para 11:
“There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:
(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
[4] A finding of unreasonable litigation conduct does not mandate an award of full costs. In both Beaver v. Hill and Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal stresses the importance of reasonableness and proportionality as the "touchstone considerations" to be applied in fixing the amount of costs.
[5] I have reviewed the respondent’s Bill of Costs. It includes $252 for services rendered after the motion was heard in relation to trial preparation. It also includes $375 for preparation of an offer to settle the case on a final basis. These fees do not relate to the motion. I have deducted them from the total fees claimed.
[6] The amount of $1,500 was included for fees in relation to an impromptu settlement conference held when the motion came on before a judge who had previously conducted a settlement conference in the case and could not hear the motion. I have not included this as part of the motion costs. It was not clear whether this was an effort to settle the motion or the application. Accordingly, fees for the time spent on that day are deferred to consideration of costs in relation to the trial.
[7] The adjusted fees are $3,148. The applicant asked that financial hardship be considered in reduction of the amount to be awarded against her. She did not provide financial details other than the nature of her work and that it had been impacted by the various stay at home orders in force from time to time during the pandemic. This is simply not enough information to enable the court to consider her request.
[8] This was a short motion. On a partial indemnity basis, I fix the respondent’s costs in the amount of $2,250 including fees and HST.
Mackinnon J.
Date: April 13, 2021
COURT FILE NO.: FC-19-2475
DATE: 2021/04/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Barbara Hutchings, Applicant
AND
Caitlin Murdock-McDougall
Mathieu Dwayne Marcotte, not present, Respondents
BEFORE: Mackinnon J.
COUNSEL: Joan Rothwell for the Applicant
Sonia Smee for the Respondent, Caitlin Murdock-McDougall
costs ENDORSEMENT
Mackinnon J.
Released: April 13, 2021