) ) MICHELLE HAZELWOOD Applicant – v. –, 2013 ONSC 25

CITATION : Hazelwood v. Hazelwood, 2013 ONSC 25 COURT FILE NO.: 18042/12 DATE: 20130102 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) MICHELLE HAZELWOOD Applicant – and – RICHARD HAZELWOOD Respondent ) ) ) ) ) ) ) ) ) Jeffery Wilson, for the Applicant. Sharon Sabourin, for the Respondent. ) ) ) HEARD: By way of written submissions and oral submissions on December 20, 2012. gauthier, j. [ 1 ] The Appellant Wife was unsuccessful in her appeal from the Temporary Order of Justice Carr, and now the Respondent Husband is seeking costs. He seeks the sum of $13,369.72 as partial indemnity costs. [ 2 ] The request for costs includes the costs for (

a) preparation and attendance for the motion before Justice Carr on May 4, 2012, and (

b) attendance at the Ontario Court of Justice to attend to receipt of additional reasons from Justice Carr on May 7, 2012, among other things. [ 3 ] The issue of costs of the May 4, 2012 motion was adjourned to the trial judge. I am told that the trial in this matter is scheduled for May, 2013. The costs for the May 4 and May 7, 2012 court attendances should be dealt with following the trial in May, 2013.

The issue of those costs is not properly before me, and I will not address the matter of the costs in the Ontario Court of Justice. [ 4 ] The Respondent says that he should get his costs thrown away in connection with the adjournment of the May 31, 2012 date, the preparation of responding materials in relation to the Appellant’s Motion to Stay the Order of Justice Carr, and the inability of the parties to proceed on June 27, 2012, as a result of the assigned Judge having a conflict in this case. [ 5 ] The Respondent’s counsel says that she received 243 emails from opposing counsel, messages relayed from her assistant about opposing counsel’s telephone calls, and responses from her client.

She says all of these communications relate to the appeal. [ 6 ] The Respondent submits that his counsel spent in excess of 70 hours to prepare for and argue the appeal.

The Respondent cites the motion for stay (which ultimately did not proceed), the motion to adduce fresh evidence on appeal, various amended appeal books, appeal facta and books of authorities, and preparation for several different proceedings as the reason for the excessive amount of time his counsel spent on this case and the high amount of fees that the Respondent has incurred. [ 7 ] For her part, the Appellant disputes that there were numerous emails to and from the Respondent’s counsel in connection with the appeal.

She suggests that fewer than 50 of the 243 emails related to the appeal. [ 8 ] The Appellant points out that the stay motion ultimately was not heard, through no fault of either party, and she should not have to bear any costs in connection with the stay motion. [ 9 ] The Appellant also points out that the hearing of the appeal took no more than one-half day, and suggests that 10 hours is ample for responding to an appeal from a temporary Order of the Ontario Court of Justice. [ 10 ] The Appellant’s counsel suggests that the Appellant’s former counsel advised her that relocating with the children without authority of the Court was an option.

I should consider that in determining the costs. There is a further suggestion that the Appellant has a right to seek costs against her former counsel pursuant to

section 131 of the Courts of Justice Act . [ 11 ] Finally, the Appellant points out that she has no income and no independent source of funds except for the spousal and child support, ($951), social assistance, ($1,200), which will be reduced by the amount of support received, and child tax benefits and tax rebates, ($555.64). She has no means of honouring an order for costs. If costs are ordered against her, she requests that the payment of same be deferred until trial and a determination of the support and property claims she has against the Respondent. [ 12 ] I will deal firstly with the claim for costs against the Appellant’s former counsel. In Truksa v. Dziemianczuk , [2009] O.J. No.

1859, Daley J. described the law relating to awarding costs against non-parties at paragraph 22:

Section 131 of the Courts of Justice Act does not provide a basis for an award of costs against a non-party. Such an award remainswithin the inherent jurisdiction of the court and is to be reserved for rare cases, for example, where a plaintiff in an action is a “strawman” put up for the purpose of insulating a non-party from potential cost liability. (Rockwell Developments Ltd. V. Newtonbrook PlazaLtd. (ON CA), [1972] 3 O.R. 199; Television Real Estate Ltd. V. Rogers Cable TV Ltd. (ON CA),[1997] O.J. No. 1944; The St. James’ Preservation Society v. City of Toronto and Rector of St.

James’ Cathedral, Toronto [2007]ON.C.A. 601). [13] The Court’s inherent jurisdiction to order counsel to pay costs personally in order to control the abuse of process, contempt ofcourt, and conduct of its own officers has been superseded by Rule 57.07 of the Rules of Civil Procedure and Rule 24(9) of the FamilyLaw Rules which set out the circumstances under which the Court may order a solicitor to pay costs personally.

Both Rules require asolicitor to be given an opportunity “to be heard” or “make representations” prior to a Court exercising this discretion. [14] It is only in cases which rise to a high level where costs will be awarded against counsel. This is not such a case. The overalltone of the email from the Appellant’s former counsel is somewhat cautious. I am not satisfied, for purposes of determining the costs ofthe appeal, that the former counsel “advised” the Appellant that it was permissible to move the children when the relocation motion waspending. [15] I now turn to the quantum of costs. [16] In Boucher v.

Public Accountants Council for the Province of Ontario (2003), (ON CA), 71 O.R. (3d)291 (C.A.), Armstrong J.A., speaking for the court, said this:[indent please] …The express language of rule 57.01(3) [of the Rules of Civil Procedure, R.R.O. 1990, Reg.194] makes it clear that the fixing of costs isnot simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs foes not begin and end with a calculation ofhours times rates…this is one factor in the assessment process, together with the other factors in rule 57.01.

Overall, as this court hassaid, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather thanan amount fixed by the actual costs incurred by the successful litigant. [17] Armstrong J.A. went on to underscore the overriding principle of reasonableness in the context of awarding costs.

He saidthis: The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to thefundamental objective of access to justice… In deciding what is fair and reasonable,…the expectation of the parties concerning the quantum of a costs award is a relevant factor. [18] To grant the costs requested by the Respondent would be neither fair nor reasonable. [19] The amount claimed is disproportionate to the nature and complexity of the proceeding. The hearing itself did not exceed ahalf day. Costs for such proceeding have a limit. And, as G.P.

Smith J. stated in Rea v. Rea, [2008] O.J. No. 128, Simply stated, costs…have a limit and cannot be excessive no matter how much time has been expended by counsel failing which accessto our judicial system will be prevented by parties of modest or average financial means. [20] I have further considered the Appellant’s financial position which is permissible under Rule 24(11) of the Family Law Rules. See M. (C.A.) v. M. (D), (2003), (ON CA), 67 O.R. (3d) 181 (C.A.). The Appellant’s resources are extremelylimited.

To burden her with a large costs award such as that sought by the Respondent would no doubt have a significant negative impacton the Appellant’s ability to meet the ongoing needs of the two children. This would be detrimental to the best interests of thosechildren. [21] I have concluded that the sum of $5,000, as suggested by the Appellant is, in all the circumstances, an appropriate award.

It isfair, reasonable, and proportionate. [22] Costs of the stay motion which did not proceed, and the adjournments of May 31 and June 27, 2012 should not be awarded toeither party in this case. [23] I have also concluded that it is appropriate in this case to defer the payment of the costs until the parties’ have equalized theirnet family property. I rely on Lauzon v. Kennedy [2011] O.J. No. 2282 (Ont. Sup. Ct.) Madam Justice L. L. Gauthier Released: January 2, 2013

CITATION : Hazelwood v. Hazelwood, 2013 ONSC 25 COURT FILE NO.: 18,042/12 DATE: 20130102 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MICHELLE HAZELWOOD Applicant – and – RICHARD HAZELWOOD Respondent RULING ON COSTS GAUTHIER, J. Released: January 2, 2013