McGregor v. Reid, 2011 ONCJ 631

Toronto Registry DFO 04 11135-02-A3 DATE: 2011·03·30 CITATION: McGregor v. Reid , 2011 ONCJ 631 ONTARIO COURT OF JUSTICE BETWEEN: Jean Bertha McGregor Applicant — AND — Darlene Reid Respondent Mother — AND — Jonas McGregor Respondent Father Before Justice Ellen B. Murray Heard on March 15, 2011 Reasons for Judgment released on March 30, 2011 Ms. Jean Bertha McGregor ....................................................... Applicant, acting on her own behalf Ms. Renuka Satchithananthan ................................... for the respondent mother, Ms. Darlene Reid Ms.

Lisa Baumal .................................................... for the respondent father, Mr. Jonas McGregor Murray, E. B. J.: [ 1 ] The Respondent Father brought a motion heard by me on March 15, 2011, requesting

summary judgment on the issue of the access which the Respondent Mother should have to the parties’ children. [ 2 ] Father was unsuccessful on the motion. In fact, his case was so weak that I did not even call upon Mother’s lawyer to reply. I did give directions for trial. Mother’s lawyer now seeks costs. Father resists the claim. [ 3 ] I denied the request for costs. These are my reasons. [ 4 ] The main action is a motion by Father to change a final order of custody made in 2005. Last year Father obtained a final custody order on consent. [ 5 ] The issue remaining is Mother’s access.

She had enjoyed overnight access to the children, but in June 2010 on the recommendation of a clinical investigator from the Office of the Children’s Lawyer, this access was reduced, pending Mother obtaining an alcohol abuse assessment and her following any treatment recommendations made in the assessment. [ 6 ] Over the next 6 months, Father’s counsel and the court received no evidence that Mother was complying with these recommendations. Mother discharged her lawyer. This

summary judgment motion, asking for a final order in terms of the current

temporary order, was brought in late February 2011. [7] Mother retained new counsel, and evidence was provided which indicated that she had obtained an alcohol abuse assessment longago, had followed some of the treatment recommendations, and was attempting to follow the balance of the recommendations.

Itappeared that conflict with her former lawyer may have accounted for some of the difficulty in forwarding the material to the court andFather’s counsel. [8] Despite obtaining this evidence, some of it albeit at the eleventh hour, Father’s counsel chose to argue the motion. [9] Mother’s lawyer submits that she should receive her costs pursuant to R. 16(10) because Father was totally unsuccessful in themotion. She further submits that his choice to have the motion argued after he had received the final affidavit (confirming Mother’streatment evidence presented on the morning of the motion) evidences bad faith.

She says that if bad faith is found, that under R. 16(11)the court has no discretion, but must award costs against him on a full recovery basis. She claims $5000. [10] Father’s lawyer submits that it was only the bringing of the motion that prompted Mother to provide evidence that had beenordered now 9 months ago. Counsel submits that it cannot be said that she enjoyed “no success” on the motion, in that a directions fortrial were made.

That direction specified that Mother was to obtain and submit, to Father’s counsel and the court, a segmented hair testmonitoring for alcohol consumption, and a report on her participation and completion of the planned alcohol day treatment program. [11] I agree that the motion was justified. However, that does not mean that Father was justified in proceeding with argument of themotion after all of Mother’s responding evidence was received.

A request for directions for trial could have been made without arguingthe motion. [12] I do not accept that the decision to argue the motion rises to the level of bad faith, but it does reflect unreasonable litigationbehaviour. That finding would have prompted an award by me of partial recovery costs, except for the fact of the effect of such an orderon the children in Father’s care. [13] Father is the sole support for both children. His only sources of income are social assistance payments and the child taxbenefit. Mother pays no child support, as she too is supported by social assistance payments.

An award of costs in any amount wouldnecessarily mean that Father has less money to care for the children. [14] At one time it was thought that the combined effect of Rules 18 and 24 did not allow a court to deny costs to a litigant otherwiseentitled to costs because of concerns about the ability of the losing party to pay. Concerns about ability to pay were thought to belegitimately addressed only tin determining the quantum of costs. That notion was put to rest by the Court of Appeal in Murray v.Murray, (ON CA), 205 O.A.C. 107.

There, the successful husband had bested his offer to settle, and thus wasalmost automatically entitled to costs under R. 18(14). The Court found that neither R. 24(1) nor R. 18(14) entirely removed thediscretion which a court has under S. 131 of the Courts of Justice Act with respect to an order of costs. The Court held that since a costsaward would have a “devastating effect” on the wife’s efforts at self-sufficiency, that no costs should be awarded. [15] The same logic in my view applies to the issue of whether costs must be awarded under R. 16(10) if the responding party hashad no success on a

summary judgement motion. The court has discretion to relieve against a costs award in special circumstances, and Iexercised that discretion in this case. Released: March 30, 2011 Signed: Justice E.B. Murray