Court File and Parties

CITATION: Elgner v. Elgner, 2010 ONSC 1625

COURT FILE NO.: 593/09

DATE: 20100317

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: CAROL ANN ELGNER v. CLAUDE FREDERICK ELGNER

BEFORE: Justice Swinton

COUNSEL: Charles E. Beall and Benjamin Arkin for the Moving Party, Claude Frederick Elgner Harold Niman and Julie K. Hannaford for the Responding Party, Carol Ann Elgner

HEARD AT TORONTO: By written submissions

COSTS ENDORSEMENT

[1] The applicant, Carol Ann Elgner, seeks costs of the respondent’s unsuccessful motion for a stay on a full indemnity basis in the amount of $61,486.11. The respondent argues that there should be no costs, as success was divided, in that his motion to stay was dismissed, but the applicant’s motion to strike the Wong affidavit failed.

[2] According to rule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion. In my view, the applicant is entitled to costs. She was successful in resisting the stay motion. While she did not succeed in having the Wong affidavit struck, I ruled that it could be relied upon only for a limited purpose to show irreparable harm. It could not be used to call into question the merits of the decision that the respondent seeks to appeal.

[3] I see no reason to award costs on a full indemnity basis. Both parties made offers to settle the motion. I do not find the respondent’s conduct to be deserving of sanction. He had not paid the retroactive support because he was bringing a motion to stay it, and he moved promptly to schedule that motion.

[4] The amount sought by the applicant is, in my view, excessive, even if reduced to a partial indemnity basis. There was no need for two senior counsel to appear on this motion, along with a junior lawyer. As well, the rates and hours charged for law clerks, junior counsel and an articling student are excessive for this motion. It was not complex, and it took under two hours to argue. In my view, an amount that is fair and reasonable for a motion of this type is $7,500.00 all inclusive, and I order that amount payable within 30 days by the respondent.

Swinton J.

Released: March 17, 2010