COURT OF APPEAL FOR ONTARIO
Doherty, Hoy and Pepall JJ.A.
BETWEEN
Mirilyn Rachel Selznick (now Mirilyn Rachel Sharp)
Applicant/Appellant in Appeal
and
Stephen Selznick
Respondent/Respondent in Appeal
Stephen Grant, for the appellant
Diane E. Klukach, for the respondent
Heard: September 19 and 20, 2012
Released: October 12, 2012
On appeal from the order of Justice Susan E. Greer of the Superior Court of Justice dated November 9, 2011 and January 21, 2012.
COSTS ENDORSEMENT
Costs of the Appeal
1The appellant seeks her costs of the appeal from the respondent, on a full recovery basis, in the amount of $79,472.30. Alternatively, the costs she claims, on a partial recovery basis, are $39,924.36.
2The respondent seeks his costs of the appeal from the appellant, on a partial recovery basis, in the amount of $29,733.61.
3As this court has observed, a costs award should reflect an amount that is fair and reasonable for the unsuccessful party to pay: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291. The principles embodied in the Family Law Rules, O. Reg. 114/99, also provide guidance in addressing costs in a family law appeal, even though those rules do not strictly apply to this court: see rule 1(2).
4Rule 24(1) of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of an appeal.
5The parties identified five issues to be argued on the appeal. The respondent was successful on four of those issues, but was unsuccessful on the fifth, his motion to introduce fresh evidence.
6Apart from the issue of the admission of fresh evidence, the respondent was therefore successful on the appeal. As such, he is entitled to his costs of the appeal.
7Rule 24(11) of the Family Law Rules provides that the court should consider the following factors when fixing the amount of costs:
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, 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.
8The issues were of obvious importance to the parties and, based on a review of the parties’ respective bills of costs, the time spent on behalf of the respondent by his lawyers and their hourly rates are reasonable. The respondent reduced his claim for costs by 10% to reflect his lack of success on the fifth issue. He legitimately included a claim for the costs of the August 28, 2012 court attendance, at which time Ducharme J.A. reserved the costs of the attendance to the panel hearing the appeal.
9Certainly the appeal record was voluminous. Not all of the costs claimed by the respondent that are associated with the appellant’s numerous motions and factums filed in this court are appropriately visited upon the appellant, however. In particular, the costs arising from the appellant’s August 14, 2012 motion to file a reply factum, which addressed the inclusion of a new document in the respondent’s materials, should not be borne by the appellant.
10The appellant’s offers to settle the appeal do not attract the cost consequences contained in Rule 18 of the Family Law Rules (or Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194). The motion judge’s order was upheld on appeal. The total amount the motion judge ordered the respondent to pay to the appellant was less than the total amount requested in the appellant’s offers. The appellant was always able to bring a motion to seek an additional contribution to the Cornell University expenses. The appeal did not change this fact.
11In our view, a costs award of $25,000 in favour of the respondent is fair and reasonable in the circumstances.
12The respondent requests that the costs award be enforceable against the appellant by the Family Responsibility Office. This costs order is a support order under s. 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, and is therefore enforceable by the Family Responsibility Office: see e.g. A.M.D. v. A.J.P. (2003), 2003 48241 (ON CA), 167 O.A.C. 274 (C.A.). The respondent’s request is therefore granted.
Costs of the Underlying Motion
13The appellant also seeks her costs of the underlying motion in the amount of $54,192.74.
14The costs award of the motion judge was rendered one day before the hearing of this appeal. She awarded the respondent costs in the amount of $32,974.57 inclusive of HST and disbursements.
15The appellant did not seek leave to appeal the motion judge’s cost award and that award was not properly before this court. Counsel on the appeal were expressly advised that this court did not propose to address the costs awarded in the motions court.
16If the appellant persists in her desire to appeal the motion judge’s cost award, she must seek leave of this court pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Counsel for the respondent indicated that the respondent would not take the position that the appellant was out of time to seek leave to appeal the motion judge’s cost award. If the appellant decides to pursue a request for leave, she should do so on an expeditious basis.
17In summary, the appellant is to pay the respondent his costs fixed in the amount of $25,000 inclusive of disbursements and applicable taxes.
“Doherty J.A.”
“Alexandra Hoy J.A.”
“S.E. Pepall J.A.”
