2014 ONCJ 376, 2014 ONCJ 376

COURT FILE NO. D55033/11 DATE: 2014-08-01 DATE: Scarlett v. Farrell , 2014 ONCJ 376 ONTARIO COURT OF JUSTICE TORONTO NORTH FAMILY COURT B E T W E E N: ) ) ROBERT DELVARDO SCARLETT ) ) ) DANNY M. BERTAO, for the APPLICANT ) APPLICANT ) ) - and - ) ROBYN JEAN FARRELL ) ANDREA KIM, for the RESPONDENT, RESPONDENT ) ) ) ) ) ) HEARD IN CHAMBERS by written submissions JUSTICE S.B.

SHERR COSTS ENDORSEMENT [ 1 ] The applicant seeks his costs arising out of the court’s dismissal of the respondent’s motions to find him in contempt of a court order and for permission for her step-father to act as agent at trial (the representation motion). [1] He also seeks his costs thrown away arising out of the adjournments of the custody/access trial that were granted, at the respondent’s request, on both April 17, 2014 and July 2, 2014. [ 2 ] The applicant seeks his full recovery costs of $3,217.49. [ 3 ] The respondent asks that there be no order as to costs, or in the alternative, if costs are ordered, that it be on less than a full recovery basis.

[4] Subrule 24 (10) of the Family Law Rules (all rule references shall be to these rules) sets out that costs are to be determined in a

summary manner after each step in the case by the presiding judge. On both April 16th and 17th, 2014, I made an order reserving costsof the motions to the completion of the trial. At the time, I was going to be the trial judge. When I granted a second adjournment of thetrial on July 2, 2014 (to permit the mother to retain counsel, as she had just obtained a legal aid certificate), the trial had to be assigned toanother judge who would be available during the week of September 23, 2014.

I determined that it would not be fair to the trial judge todetermine costs issues concerning steps over which I had presided and permitted these earlier costs submissions. [5] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 , [2009] O.J. 1905 (Ont.

C.A.) confirmed that moderncosts rules are designed to foster three fundamental purposes, namely: to partially indemnify successful litigants for the cost of litigation,to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards shouldreflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party. [6] Subrule 2 (2) adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases aredealt with justly.

This provision needs to be read in conjunction with rule 24. Subrule 2 (4) states that counsel have a positive obligationto help the court to promote the primary objective under the rules. Clauses 2 (3) (

a) and (

b) set out that dealing with a case justlyincludes ensuring that the procedure is fair to all parties and saving time and expense. Sambasivam v. Pulendrarajah, 2012 ONCJ 711. [7] Subrule 24 (1) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point indetermining costs. Sims-Howarth v. Bilcliffe (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). [8] The applicant was clearly the successful party in having the contempt and representation motions dismissed.

The presumption ofhis entitlement to costs was not rebutted. [9] The respondent submitted that she was the successful party with respect to the granting of the adjournment requests. That is asuperficial way of analyzing the issue. The adjournments were granted to give the mother the best possible chance to be represented attrial. Her previous lawyer had asked to be removed from the record. The first adjournment was granted only when the court dismissedher representation motion. The second adjournment request was made on July 2, 2014, without prior notice to the applicant, at the trialmanagement conference.

The respondent had already begun his trial preparation. Some of that work will have to be duplicated. One ofthe factors in granting the adjournments was whether the prejudice of the delay to the respondent could be compensated in costs. Therespondent is entitled to some costs thrown away arising out of these adjournments. [10] In making this decision, I have considered the factors set out in subrule 24 (11) which reads as follows: 24

(11) A person setting the amount of costs shall consider, (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, draftingdocuments and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter. [11] The issues before the court were important for the parties. They were not difficult or complex. [12] The parties both acted reasonably. It was understandable that the respondent wanted her step-father to represent her. Theapplicant had representation and the respondent had been refused further counsel through legal aid (she subsequently was able tosuccessfully appeal this decision). Her step-father was a suspended lawyer with considerable court experience. While the contemptmotion was dismissed, the mother brought it with the honest belief that it was necessary to do this to obtain all of the father’s criminalrecords.

[13] However, the fact that the mother acted reasonably does not exempt her from a costs award. Litigation is expensive and therespondent should not have to fully bear the costs of the unsuccessful motions brought by the mother and the costs arising from heradjournment requests. [14] The rates and time spent claimed by the respondent’s lawyer are very reasonable and proportional. [15] I considered the respondent’s ability to pay the costs order. MacDonald v. Magel (2003) (ON CA), 67 O.R.(3d) 181 (Ont.C.A.).

A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be takeninto account regarding the quantum of costs. Snih v. Snih, (Ont. SCJ). [16] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario (ONCA), [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v Delellis and Delellis (ON SC), [2005] O.J. No. 4345.

Boththese cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9: However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize thetraditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and theoutcome.

The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. [17] Taking into consideration all of these factors, the respondent shall pay the applicant’s costs arising out of the dismissal of hercontempt and representation motions and the court granting two adjournments of the trial in the sum of $2,000, inclusive ofdisbursements and HST. [18] An order shall also go that payment and enforcement of the costs shall be suspended pending further direction of the trial judge.If the respondent is successful at trial and is awarded costs, the trial judge will have the flexibility to determine if the amount orderedhere can be set off against her costs award.

If she is unsuccessful at trial and costs are awarded against her, the trial judge will have theflexibility of determining how all costs are to be repaid. ___________________________ Justice S.B. Sherr Released: August 1, 2014