Morris v. Ernewein, 2012 ONCJ 400

COURT FILE NO.: F0252/11 DATE : June 18, 2012 Citation: Morris v. Ernewein , 2012 ONCJ 400 ONTARIO COURT OF JUSTICE RE: JESSICA KATHERINE MORRIS - Applicant DARYL JOHN ERNEWEIN – Respondent BEFORE: JUSTICE R. ZISMAN COUNSEL: Novalea Jarvis, for the Applicant James Evans, for the Respondent HEARD: By written submissions C O S T S E N D O R S E M E N T 1. INTRODUCTION [ 1 ] The applicant seeks costs of the motion heard on December 2, 2011 and reviewed on March 6, 2012.

The respondent submits that the costs submissions are too late to be considered by the court and that in any event, there was mixed success on the motion. [ 2 ] Although there were several issues in dispute, the most contentious was the issue of spousal support. At the end of the motion argued on December 2, 2011, I ordered that the respondent pay spousal support of $1,000.00 per month. I also ordered that the costs be addressed at the return of the motion that was to be reviewed on March 6, 2012.

On March 6, 2012 the order for spousal support was ordered to continue but due to time constraints the applicant’s request for costs could not be argued. On the next return date of May 4, 2012, Ms. Jarvis, on behalf of the applicant, requested that the issue of the outstanding cost issue be addressed. The respondent’s counsel requested additional time to respond which was granted and counsel were given a timetable by which to make written submissions. 2. TIMING OF REQUEST FOR COSTS

[3] Subrule 24 (10) of the Family Law Rules requires that costs be dealt with promptly at each step of the proceeding. However,this does not preclude a judge from adjourning the issue of costs to a later date or setting a specific date for cost submissions. [4] In this case, the issue of costs was simply adjourned as the temporary order of December 2, 2011 was to be reviewed on thereturn date of March 6, 2012. On that date, time constraints prevented the issue of costs from being addressed and then on the nextreturn date, the respondent’s counsel asked for further time to make submissions.

I do not accept the respondent’s counsel’s submissionsthat he was “taken off guard ” by the request for costs as it should have been clear to him that the applicant intended to pursue the issueof costs. I find that I have jurisdiction to deal with the issues of costs. 3. SUCCESS ON MOTION [5] The applicant submits that she was very successful on the motion. She asked for spousal support of $1,025.00 and was awarded$1,000.00 per month. She also requested the respondent pay his proportionate share of

section 7 expenses, continue to maintain theapplicant and the child on his extended medical and dental plan, obtain and maintain life insurance, dispense with the need for hisconsent to obtain a passport and that he exercise supervised access. It is submitted that all of this relief was also ordered. [6] The respondent submits that with respect to all of the issues, except spousal support, he was in agreement with the applicantexcept for some minor adjustments.

It is submitted that he has acted reasonably throughout the proceedings as he only requestedsupervised access and had consented at the case conference to pay child support and provide medical benefits. [7] It is submitted that the parties were very close to a settlement on the issues of spousal support prior to the motion being arguedbased on the applicant earning $18,835.00.

But three days before the motion was to be argued, the applicant filed an updated financialstatement based on zero income and filed an affidavit explaining that she was not returning to her prior position after her maternity leaveas that job required rotating shifts that were not conductive to caring for a young infant and that despite many attempts she had not beenable to find alternate employment.

The applicant states that counsel had agreed to late service and filing of the motion materials and thatcounsel for the respondent could have requested an adjournment if he was not prepared to argue the motion. [8] On the review of the order of spousal support heard on March 6, 2012 the respondent continued to argue that the applicant wasintentionally under-employed, that she should have been seeking employment with any employer and not restrict her job search toinsurance companies and that she was not making good faith attempts to find employment.

None of these submissions was accepted byme. [9] Although I agree with the respondent that he had consented to most of the relief sought by the applicant, the issue that took themost time and that was most vigorously opposed by the respondent was the issue of spousal support. On that issue the applicant was thesuccessful party and is therefore presumed to be entitled to her costs. [10] The respondent further submits that he was successful in his motion, also returnable on December 2, 2011 for the release of theapplicant’s police record and any police occurrence reports.

Although that motion was before the court on December 2, 2011 and it wasopposed by the applicant, it could not be argued as the respondent had not served the police. However, I endorsed the record to indicatethat I believed the information was relevant and that upon proper notice to the police, I would make the necessary order and that themotion could be submitted by a Form 14B motion.

I also endorsed that counsel for the applicant could bring a motion for production ofthe respondent’s police record and any police occurrences. [11] I agree with the submission of counsel for the applicant that costs were not requested when the motion was submitted and that,despite the applicant’s initial opposition, she consented to the release of her police record and occurrences reports. [12] I therefore find that the respondent is not entitled to any costs of the police records disclosure motion. [13] Therefore having determined that the applicant is entitled to her costs as the successful party, I have reviewed her Bill of Costswith a view to fixing costs.

The applicant submitted a bill of costs in the amount of $8,147.41 on a full indemnity basis and for$5,087.37 on a partial indemnity basis. 4. ANALYSIS [14] I am mindful of the comments made in Boucher v. Public Council (Ontario) (2004), (ON CA), 2004CarswellOnt 2521, [2004] O.J. No. 2634, that the fixing of costs does not begin and end with the calculation of the hours times thelawyer’s rate but rather, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case. [15] Rule 24 of the Family Law Rules, O.

Reg. 114/99 provides guidance on costs in a family law context. Rule 24 (1) sets out thebasic assumption that a successful party is entitled to costs. Rule 24 (11) provides a further list of factors a court should consider indealing with costs: 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 behavior in the case;

c) the lawyer’s rates;

d) the time properly spent on the case, including conversations between the lawyer and the party, drafting documents 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. [ 16 ] I am fixing costs in the amount of $3,000.00, inclusive of disbursements and applicable taxes. I have considered the following factors in arriving at this amount: 1. The applicant was the successful party on the motion. 2. The applicant acted reasonably in pursuing spousal support. I do not agree with the respondent that she acted in bad faith in taking the position about not returning to her former employment or that she did not actively seek to find new employment.

However, I do not accept the applicant’s submissions that the respondent acted unreasonably with respect to any other issues. It appears from the negotiations between counsel that the respondent was prepared to pay some modest spousal support but then the settlement discussions broke down when the applicant took the position that she was not returning to work until she either completed her education or found suitable employment. 3. The issue of spousal support was very important to the applicant as her employment insurance terminated in November 2011 and she had no other income and was not employed.

However, it was not a particularly difficult or complex issue. 4. The motion was argued for a short time although there were several affidavits, financial statement, spousal support calculations and case law that were provided in support of the motion. 5. The bill of costs submitted indicates counsel’s hourly rate of $300.00 and that she spent 22.5 hours and that her clerk’s hourly rate is $100.00 and she spent .2 hours and the disbursements were $440.10. The counsel rate of $300.00 per hour is reasonable for counsel with 16 years of experience. The disbursements also are reasonable.

Having examined the detailed docket provided, I find that some of the time spent is related to the overall preparation of the case and for attendance and preparation of documents for the settlement conference. 6. There are no circumstances in this case that warrant costs on a full recovery basis. Costs should be awarded only on a partial recovery basis. 7. I find that an amount of costs that is fair and reasonable in these circumstances is $3,000.00.

I have also taken into consideration that the respondent’s counsel submitted a bill of costs for $5,020.59 and this is a useful comparison despite the fact that the hours he spent and the rates charged are lower. [ 17 ] ORDER 1. The Respondent shall pay to the Applicant her costs fixed at $3.000.00. 2. This cost order is to be enforced by the Family Responsibility Office as a support order. 3. Support Deduction order to issue. ___________________________ Zisman J. DATE: June 18, 2012