COURT FILE NO.: FS-16-38978

DATE: 20221118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Norman Hall, Applicant

AND:

Brenda Catherine Leavey, Respondent

BEFORE: Conlan J.

COUNSEL: Laura E. Oliver, for the Applicant

Brenda Leavey, Self-Represented

ENDORSEMENT ON COSTS

I. Final Order Made on October 19, 2022

[1] Having been called for trial, and after having last-effort pretrial discussions with another judge, this proceeding settled on a final basis.

[2] As the scheduled trial judge, I endorsed the settlement at court on October 19, 2022 – “Final Order shall issue as per the Minutes of Settlement…”. Directions were given for the receipt of written costs submissions, which submissions have now been received and reviewed.

[3] For some reason, Ms. Leavey felt the need to file more than three hundred pages of materials, and she found some way to jam a colossal number of words into the five-page limit on the written submissions, just barely. Respectfully, I would have preferred a more measured approach to the costs issue.

II. The Positions of the Parties on Costs

[4] Mr. Hall asserts that he was successful, that Ms. Leavey was wholly unsuccessful, that Ms. Leavey was grossly unreasonable throughout the proceeding, and that he should therefore receive his full indemnity costs in the total amount of $175,000.00 (the Bill of Costs actually shows a grand total of $182,177.97, but Mr. Hall must be taken to be content to receive the slightly lower figure).

[5] Ms. Leavey proposes three alternatives: (i) Mr. Hall pays to her $15,000.00, or (ii) each side bears its own costs, or (iii) she pays to Mr. Hall $15,000.00 at the rate of $100.00 per month (which would mean that the costs order would be outstanding for more than twelve years).

III. The Law of Costs

[6] A successful party is presumptively entitled to some costs – 24(1) of the Family Law Rules (“FLR”).

[7] A successful party who has behaved unreasonably, however, may receive no costs or may even be forced to pay costs to the other side – 24(4) FLR.

[8] Settlement offers are relevant, even those that do not meet the requirements of subrule 18(14) – 18(16) and 24(5) FLR.

[9] An absent or unprepared litigant risks having costs awarded against him/her on that basis alone, and a litigant who acts in bad faith shall have costs awarded against him/her on a full recovery basis – 24(7) and 24(8) FLR.

[10] There are certain common factors that are considered in deciding the quantum of costs, such as each party’s behaviour, however, that list is non-exhaustive – 24(12) FLR.

[11] Costs are highly discretionary, but the objectives are well-settled: to at least partially indemnify successful litigants, and to encourage settlement, and to penalize bad conduct by litigants.

IV. Decision

[12] This Court rejects Ms. Leavey’s submission that Mr. Hall was not more successful than she was.

[13] One must look at Ms. Leavey’s Motion to Change dated December 9, 2020, particularly page 4 therein, and the Minutes of Settlement which were incorporated into the consent Final Order made on October 19, 2022, especially clause 8 therein.

[14] The latter gave to Mr. Hall equal parenting time with the child. The former would have relegated Mr. Hall to being an alternate weekend father, plus Wednesday overnight.

[15] There is nothing more important than parenting time. Mr. Hall was successful on that most important issue.

[16] In her written submissions on costs, at pages 3 and 4, rather than point to any success at all on any of the myriad of substantive issues raised in her Motion to Change, like parenting time, her request for a restraining order, child support including section 7 expenses, spousal support, and equalization of net family property, Ms. Leavey points to her “success” on items like the method of communication between the parties, the place of exchanges of the child, and the child not being permitted to bring a cellular telephone between the two homes.

[17] Ms. Leavey is an intelligent person; she writes very well. That she cannot point to any success on any substantive issue, apart from what is noted above, is telling. She knows that she was not successful on her Motion to Change. Mr. Hall was successful and is, therefore, presumptively entitled to some costs.

[18] Having said that, I am not prepared to award to Mr. Hall anything more than partial indemnity costs. I think that Ms. Leavey is, unquestionably, an uncooperative litigant. I saw that for myself when I briefly encountered the parties and counsel at the time that the Final Order was made. Ms. Leavey was very reluctant to agree to something as basic as the child acquiring a Nexus card for cross-border travel with Mr. Hall to their regular destination in New York state. She was also unprepared for the trial and advanced a rather meritless adjournment application, which this Court dismissed.

[19] I do not find bad faith, however, and Mr. Hall cannot properly rely on subrule 18(14) because his final offer to settle dated August 23, 2022, although very reasonable, was withdrawn.

[20] There is nothing excessive about the time spent or the hourly rates charged by Mr. Hall’s counsel. There is no basis for Ms. Leavey’s suggestion that the quantum of costs be based on a “1.5 day trial” (page 2 of her written costs submissions), as the costs are properly for the “case” – 24(1) FLR.

[21] I disagree with Ms. Leavey’s other complaints about the Bill of Costs filed by counsel for Mr. Hall, although I do think that it would have been helpful for actual time dockets to have been included. Their absence here is not as significant as it would have been if the Bill of Costs itself was not particularized with descriptions of each task, the time spent on that task, and the hourly rate for the person who performed that task. This Bill of Costs is particularized in that manner.

[22] What would be a fair, just, reasonable, and proportionate amount of costs to award in favour of Mr. Hall, considering all of the circumstances including but not limited to the reasonable expectations of the unsuccessful side, Ms. Leavey?

[23] I would answer that question with the sum of $100,000.00, even, all-inclusive.

[24] That is less than 60% of Mr. Hall’s actual costs, and therefore a little low in terms of partial indemnity costs, but it remains a very sizeable amount of money for anyone and for Ms. Leavey in particular. It must be remembered that she is now without the support payments that she was receiving prior to this Final Order.

[25] This Court orders that Ms. Leavey shall pay to Mr. Hall costs for the case in the total amount of $100,000.00.

Conlan J.

Date: November 18, 2022