COURT FILE NO.: 308/16
DATE: 20221219
SUPERIOR COURT OF JUSTICE, FAMILY COURT- ONTARIO
RE: Terra Mary Kramer, Applicant
AND:
Martin Benjamin Kramer, Respondent
BEFORE: Mr. Justice Robert B. Reid
COUNSEL: T. Charuk, Counsel, for the Applicant
B. Ludmer Counsel, for the Respondent
decision on costs of motion
Background:
[1] The respondent brought a motion which can be summarized as a request that the applicant comply with various outstanding court orders dealing with the parties’ two children including communication, parenting time, etc.
[2] Principally, the motion sought to correct the situation in which the respondent had not had any meaningful contact with his soon to be 14-year-old daughter since the end of February 2021. His strongly held view was that the applicant had been either actively discouraging the daughter from contact with him or at the very least failing to encourage her to comply with the court order of December 9, 2019 which mandated an equal sharing of parenting time. The applicant was likewise adamant in maintaining that despite her best efforts, the daughter continued to refuse contact with the respondent.
[3] In my decision of November 7, 2022, I dismissed the respondent’s motion. On the basis of the information contained in the untested affidavits, it was impossible for me to conclude that the failure of the daughter to remain in a relationship with the respondent occurred as a result of the actions of the applicant. What was clear was that the daughter has mental health issues, and I could not conclude that her best interests would be served through judicial orders geared to enforcement of the December 9, 2019 order.
[4] The applicant made verbal submissions at the motion hearing that as an alternative, the court should order an assessment under section 30 of the Children’s Law Reform Act. That verbal request was dismissed pending the applicant satisfying the court on proper evidence that an assessment would likely produce otherwise unavailable evidence as to the child’s best interests, and that the resulting cost of an assessment and the additional intrusiveness into the life of the child together with any litigation delay would be justified.
[5] In the event that the parties were unable to agree on costs, they were invited to file written submissions by December 16, 2022. Those submissions have now been received, and my decision on costs is set out below.
Positions of the parties:
[6] The applicant seeks costs on a full recovery basis in the amount of $17,972 which includes a disbursement of $5,251.67 for research. She submits that the material filed by the respondent was substantial, answering which required extensive preparation including responses to many unreasonable requests.
[7] The applicant notes that she was successful and therefore is presumptively entitled to costs under rule 24 of the Family Law Rules. She submits that the respondent behaved unreasonably in proceeding with the motion which was primarily directed to establishing reconciliation counselling without regard to the potential benefits of a section 30 assessment as an alternative. On that basis, she seeks costs on a full recovery basis.
[8] For his part, the respondent submits that each party should bear their own costs or alternatively that costs should be reserved to trial, given that the issue of why the child refuses to see the respondent is still undetermined. The respondent states that the costs claimed by the applicant are disproportionately high, particularly as to the disbursement for research. His Bill of Costs shows a full recovery total of $12,085.91 which is about two-thirds of the applicant’s claim. Further, the respondent relies on caselaw to the effect that costs need not follow the event in parenting time cases so long as there is no bad faith or other exceptional circumstances.
Analysis:
[9] In exercising the discretion to award costs pursuant to section 131 of the Courts of Justice Act, the provisions of rule 24 of the Family Law Rules provide guiding principles.
[10] A successful party is presumed to be entitled to costs but may otherwise be deprived of that entitlement based on unreasonable behaviour during the case. Where success is divided, the court may apportion costs as appropriate in its discretion.
[11] In this motion, the respondent was not successful. He was single-minded in insisting that fault be attributed to the applicant for his inability to maintain contact with their daughter but unable to persuade this court to make any of the enforcing orders that were sought.
[12] The applicant was equally single-minded in her argument that a section 30 assessment was the only appropriate way to determine the source of the problem, even though she did not bring forward a formal motion requesting that order. Considerable time was taken during the hearing attempting to convince the court to use its discretion to order an assessment despite the lack of a formal motion and evidence in support.
[13] The parties are engaged in long-term, high conflict litigation where each blames the other for the fractured relationship between the respondent and their daughter. Just as I was unable to determine whether the applicant was the source of the problem as alleged by the respondent, I am not able to conclude that the respondent has behaved unreasonably in bringing the motion. Therefore, this is not a case where costs should be ordered on a full recovery basis.
[14] Although the respondent may have acted in good faith in bringing his motion on a demonstrably important matter, that fact does not absolve him from responsibility for costs. It is well understood that, in the normal course of events, costs awards are made for the purposes of partially indemnifying successful litigants for the cost of litigation, encouraging settlement, and discouraging and sanctioning inappropriate behaviour by litigants.
[15] In high conflict case like this one, the potential for a negative costs award should be a potent incentive for settlement as well as a disincentive for any steps that are not of clear utility.
[16] I am satisfied that based on the foregoing considerations, there should be an award of costs to the applicant on a partial indemnity basis.
[17] Based on the amount of material filed by the respondent including the 10-page Notice of Motion with 31 heads of relief, I accept that a substantial amount of time was required to be spent by counsel for the applicant in response. However, it appears that at least 4.5 hours of time on the applicant’s Bill of Costs (from June 19 and June 20, 2022) did not relate to the motion. Although the large disbursement for research seems high, its accuracy is unchallenged.
[18] The applicant’s partial indemnity rate calculated at 60 percent of the full rate set out in her Bill of Costs amounts to $7,632 inclusive of HST. After a reduction of 4.5 hours not attributable to the motion, that figure becomes $6,427. With the addition of disbursements, the total increases to an all-inclusive sum of $11,678.67.
[19] Although the applicant was successful in opposing the respondent’s enforcement requests, she was not successful in receiving an order for a section 30 assessment. As a result, I reduce the cost responsibility of the respondent to the all-inclusive total of $8,000. That amount is only modestly higher than the partial indemnity amount shown in the respondent’s Bill of Costs, and as such should be well within any reasonable expectation for costs responsibility on his part.
[20] There will therefore be an order that costs of the motion are payable by the respondent to the applicant in the all-inclusive sum of $8,000, payable within 30 days.
Reid J.
Date: December 19, 2022