Court File and Parties

PETERBOROUGH COURT FILE NO.: FC-18-119 DATE: 20241105 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jason Mooney, Applicant AND: Carrielynn Mooney, Respondent

BEFORE: The Hon. Mr. Justice C.F. de Sa

COUNSEL: Aaron Huizinga, Counsel for the Applicant Shannon Smith, Counsel for the Respondent

HEARD: In Writing

Endorsement

[1] Of the Order’s requested in the Respondent’s Notice of Motion dated July 3, 2024, the Respondent was successful in obtaining an Order as follows:

If the Applicant wishes to bring any further motion prior to trial, he will be required to post security in the amount of $5,000.00, or alternatively will require leave of the Court.

The outstanding costs owed to the Respondent are to be paid from the joint account currently containing $5,043.00.

Analysis

Legislation

[2] In the Courts of Justice Act the Court’s general discretion to determine costs is set out in s. 131(1):

131.(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[3] In the Family Law Rules, rule 24 governs the issue of costs in respect of family law cases.

24.(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal….

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew of failed to accept.

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.

(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] The Applicant takes the position that he was more successful than the Respondent. While the Applicant was successful in defending off eight of the nine orders sought, the Respondent was only partially successful in obtaining part of one of the orders requested. This motion took considerable resources to defend against the orders sought and the possible outcome given the ramifications.

[5] The Applicant submits that costs should be awarded to the Applicant on a substantial indemnity basis or in the alternative, on a partial indemnity basis.

[6] The Respondent submits she acted reasonably and appropriately in this matter by bringing the motion and attempted at a very early stage to avoid ongoing legal fees and made reasonable offers.

[7] The Respondent’s Offer included the relief ultimately awarded being the payment of $5,000 prior to any motion.

[8] No offer was submitted by the Applicant which in itself amounts to unreasonable conduct in the circumstances. Moreover, the matter had to be adjourned to accommodate Applicant’s counsel’s late retainer necessitating additional preparation.

[9] In the circumstances here, I do consider the Respondent to be the successful party. While I did not order security for costs, this was to permit the Applicant to advance his position at trial.

[10] While I recognize that the Applicant has limited resources, the level of financial hardship does not grant a litigant the right to unrestricted access to the Courts. As expressed by Justice J. A. Ramsay in Lee v. Chang, [2024] O.J. No. 3788:

…In general, impecuniosity does not and should not eliminate a party's obligation to pay costs… The rationale is “avoiding a situation in which litigants without means can ignore the rules of the court with impunity, and the distastefulness of creating a rule incapable of consistent application”: Myers v. Metropolitan Toronto (Municipality) Chief of Police, 125 D.L.R. (4th) 184 (Ont. Div. Ct.) at pp. 189-90.

See also In Jessica Greenhalgh, et. al. v. The Corporation of the Township of Doura-Dummer, 2011 ONSC 2064, [2011] O.J. No. 1657, at para. 36, aff'd Greenhalgh v. Douro-Dummer (Township), 2012 ONCA 299, and Churchill v. Elliot, [2024] O.J. No. 2128; McLellan v. Birbilis, 2022 ONSC 3467 (SCJ); Ricketts v. Ricketts, 2024 ONSC 1403 (SCJ).

[11] Family court is not a forum for individual litigants to carry on in whatever manner they choose, oblivious to unnecessary expense and other complications they create for the opposing party. Carmichael v. Carmichael 2019 ONSC 7224 (SCJ); M.B. v. A.F., 2021 ONSC 6488 (SCJ); Sabo v. Sabo, [2013] O.J. No. 4628 (OCJ); Dabideen v. Ghanny, 2022 ONSC 5212 (SCJ).

[12] There were extensive materials required to prepare for this Motion. I agree with the Respondent that it is the Applicant’s conduct throughout the proceeding that required a motion of this nature to be brought.

[13] The Respondent seeks costs on a full indemnity basis in the amount of $13,715.00, or alternatively, on a partial indemnity basis in the amount of $8,229.23.

[14] In the circumstances, I will order costs to be paid by the Applicant to the Respondent in the amount of $9,000 inclusive of HST.

Justice C.F. de Sa Date: November 5, 2024