Koestler v. Bricker, 2012 ONCJ 384

COURT FILE No.: Goderich 03 54 DATE: 2012·06·12 Citation: Koestler v. Bricker , 2012 ONCJ 384 ONTARIO COURT OF JUSTICE BETWEEN: Ryan Ronald Robert Koestler Applicant — AND — Stacey Dawn Bricker Respondent Before Justice Brophy Pursuant to Written Cost Submissions Reasons for Costs Ruling released on 12 June 2012 Elli M. Cohen ......................................................................................................... for the applicant Phillip J.

Smith ................................................................................................... for the respondent Brophy J.: INTRODUCTION [ 1 ] This was a custody and access dispute. The parties settled this matter by Minutes of Settlement on 9 February 2012. The Minutes provided that the Applicant would pay costs to the Respondent. If the parties could not agree on those costs then the parties were to file written submissions and the Court would determine the costs question. The parties could not agree and submissions were filed at the end of March 2012.

BACKGROUND [ 2 ] The Applicant brought a Motion to Change on 3 August 2010 seeking custody of the couple’s nine year old son who had been in the Respondent’s custody since 2004 pursuant to an Order of this court. The Respondent resisted. The matter was settled in February of 2012. The Respondent continued to have custody and the Applicant increased his summer vacation access from two weeks to four weeks. [ 3 ] From a review of the Offers to Settle it is clear that the Applicant abandoned his claim for outright custody on 23 June 2011 when he asked for week about access.

This new position was then discarded on 17 January 2012 when he asked for access on alternate weekends from Thursday to Monday and one-half of the summer vacation. The Respondent rejected the earlier positions taken by the Applicant. However when she received the Offer that simply modified ordinary access, she instructed her counsel to enter into negotiations to settle the matter. And indeed it then settled with the only change to the previous Order being an increase in summer access. ANALYSIS [ 4 ] In my view the entitlement to costs is clear. The Respondent was completely successful in the action.

The only change was an increase in summer access, which was not the focus of the litigation in the first instance. This marginal change was collateral to the dispute. The summer access increase probably could have been negotiated from the outset, although we will never know because that was not what was initially sought.

Moreover the entitlement to costs is also made evident by the terms of the Minutes of Settlement wherein it is agreed that the Applicant is to pay the Respondent’s costs. [ 5 ] The Respondent was successful and the Minutes of Settlement and the presumption in Rule 24(1) indicate that she is to receive her costs. [ 6 ] That having been said the quantum is what is of concern. [ 7 ] The Respondent seeks complete indemnification to the tune of $9,675.05. [ 8 ] The Respondent behaved reasonably throughout the litigation and there is no reason to deprive her of costs. See Rule

24(4). [ 9 ] Rule 24(10) directs that costs are to be determined on a step by step basis. In this case there were no motions. There was only a case conference, settlement conference and trial management conference. There were no costs awarded at each of the steps in this action. [ 10 ] Counsel for the Applicant suggests that this means axiomatically there should be no costs on this application with respect to preparation and attendance on each of those steps. This is not correct.

It is necessary to look at each of the events to determine whether the absence of a cost order removes that step from the overall costs assessment. [ 11 ] Arguably a cost order is something that could be made at the end of a case conference if the matter was contested and there was a clear victor on the day. That is not what usually happens. Generally case conferences simply identify the issues, facilitate some discussion about settlement possibilities, and lay out the

schedule for the litigation. They are also a necessary precursor step if any of the parties wish to bring a motion. Likewise the settlement conference and trial management conference are also, for all intents and purposes, mandated steps and the parties are required to attend. [ 12 ] Why would a judge award costs with respect to those individual steps, unless one of the parties fails to attend or does not participate? The very nature of the events do not allow for an assessment of costs in terms of success.

The only reason to say something about costs would be to avoid what is now argued – that is to say that if nothing is said it means that the matter of costs was considered when in fact it almost always is not. To reduce the matter to a mantra of “costs reserved” being said on each and every occasion would be meaningless and with no value received for the words. [ 13 ] The case conference, settlement conference and trial management conference events in the ordinary case are neutral and form part of the structure and architecture of every case.

If this argument is to be successful the party advancing it needs to present a transcript of the appearances and point to where the question of costs is legitimately in issue in these specific appearances. [ 14 ] In my view in this case there is nothing to be taken from the absence of individualized cost awards with respect to the various conferences. [ 15 ] Rule 24(11) sets out the factors to be considered in determining quantum. [ 16 ] The case was important to the parties. It was not however complex. The procedural steps were few: case conference, settlement conference and trial management conference.

The action itself was ordinary although the allegations were serious. If supported they may have been a reason to reassess the custody arrangement. The case was completely dependent upon the quality of the evidence. The Applicant after assessing his evidence decided that he could not be successful. He did not force that matter on for trial and he did not bring motions that could not succeed. His actions were not unreasonable [ 17 ] Much has been made in the submissions about the merits of the parties positions. The court cannot assess those opposing allegations.

There is no evidence upon which the court can to reflect and in any event unless there is something egregious it does not bear on the calculation that has to be made with respect to costs. What is clear is that the Applicant reviewed his position and the evidence in support thereof and for reasons that convinced him his position was untenable he gave up. [ 18 ] The Applicant was reasonable throughout and at the end of the day was vindicated. [ 19 ] Although the Respondent claims full indemnity, I do not believe that would be correct under the circumstances of this case.

This is in light of the fact that I have not found the Applicant to have behaved in an unreasonable manner. Further it must be acknowledged that the Applicant did manage to achieve a small and modest increase in summer access. The Respondent is however able to claim costs on a partial indemnity basis. [ 20 ] Although counsel for the Respondent is a junior lawyer, called to the bar in 2010, he acquitted himself very well in this action. His hourly rate is at the high end of what I would consider proper for counsel with his experience. In my view the proper rate is $175.00 per hour.

I note as well that in the traditional manner the counsel fee in this matter has included the clerk and secretary time. In other words there is no separate claim for support staff work on the file. [ 21 ] He details that he spent 42.35 hours on the matter. No doubt he did. Particularly as a junior lawyer he would want to ensure that he left no stone unturned. However given the nature of the case and the lack of motions, in my view the time spent at the beginning of the action was more than was necessary. Notionally the number of hours should be reduced by seven hours to 35.5.

At $175.00 per hour the counsel fees are now $6,212.50. With HST the total Bill of Costs then becomes $7,123.48. [ 22 ] In my view the proper partial indemnity amount is fifty percent of the total. That is to say $3,561.74. [ 23 ] In that reduction I have taken into consideration the financial circumstances of the Applicant and that the payment of costs will have some impact on his ability to meet his child support obligations. [ 24 ] As a final note counsel for the Applicant makes a weak argument about the apportionment of clauses in the Minutes of Settlement as taken from the various Offers to Settle.

What he seems to be saying is that the court should apportion costs in a ratio that is the same as the provenance of the various clauses. With respect this argument is nonsensical. The proper question is what was the core issue in dispute and did the settlement of that issue conform with one parties offer more than the other’s. In this case the main issue was custody and the position of the Respondent eventually prevailed.

To argue that the various administrative and pro forma clauses in the Minutes of Settlement should have equivalent weight to the clauses dealing with the main issue is incorrect. [ 25 ] The Respondent shall have her costs paid by the Applicant in the amount of $3,561.74 inclusive of HST payable forthwith.

Released: 12 June 2012 Signed: “Justice Brophy”