CITATION: Cartwright v. Cartwright, 2011 ONSC 1827
COURT FILE NO.: DC10-0019-00
DATE: 20110325
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Cindy Elizabeth Jahn-Cartwright
v.
John Scott Cartwright
BEFORE: Kruzick, J.
COUNSEL: Philip J. Smith, for the Applicant (Respondent), Cindy Elizabeth Jahn-Cartwright
Eli M. Cohen, for the Respondent (Appellant), John Scott Cartwright
C O S T S E N D O R S E M E N T
Background
[1] On August 6, 2010, pursuant to the consent of the parties I set aside the Order and Judgment of Price J. made on February 8, 2010.
[2] The consent restored an earlier order made by O’Connell J. dated December 6, 2007, and provided for the issues raised by the motion to change and for extraordinary expenses of the child of the parties to be heard at a date to be set by the Trial Coordinator.
[3] The parties agreed that the resulting costs of my set-aside order would be determined by me upon receipt of submissions in writing. A schedule was set whereby the Appellant (Respondent) and Respondent (Applicant) had 30 and 60 days respectively to made submissions.
[4] The Applicant (Respondent) Ms. Jahn-Cartwright provided written submissions.
[5] The costs inclusive of taxes as set out in the Bill of Costs of Mr. Cartwright claim $20,286.58.
[6] The costs inclusive of taxes as set out in the Bill of Costs of Ms. Jahn-Cartwright claim $ 6,791.25.
Determination of Costs
[7] The jurisdiction of this court to deal with costs arises from the consent of the parties.
[8] Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43 as am. reads:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extend the costs shall be paid.
[9] On June 21, 2010, Ms. Jahn-Carwright made an offer to settle the appeal on the basis as was ultimately agreed upon in the order I made.
[10] The offer of June 21, 2010 was not accepted by Mr. Cartwright. The offer was finally accepted on June 30, just days before responding material was due to be filed. This delay required Ms. Jahn-Carthwright to prepare draft versions of her responding material, including a factum, exhibit book and book of authorities for the appeal.
[11] In the end I am of the view that had Mr. Cartwright acted more promptly, the costs which Ms. Jahn-Cartwright incurred on this appeal could have been avoided and the time and money better spent.
Disposition
[12] I agree with Counsel for Ms. Jahn-Cartwright that it would not in the circumstances be fair to require her to bear the legal cost of preparing for the appeal which in the end was settled and could have been settled more promptly so as to avoid such costs.
[13] In exercising my discretion and after review of the bills of costs as submitted I am of the view and order that Mr. Cartwright pay to Ms. Jahn- Cartwright her costs fixed in the amount of $5,000.00.
Kruzick J.
DATE: March 25, 2011
CITATION: Cartwright v. Cartwright, 2011 ONSC 1827
COURT FILE NO.: DC10-0019-00
DATE: 20110325
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cindy Elizabeth Jahn-Cartwright
v.
John Scott Cartwright
BEFORE: Kruzick J.
COUNSEL: Philip J. Smith, for the Applicant (Respondent)
Eli M. Cohen, for the Respondent (Appellant)
COSTS ENDORSEMENT
Kruzick J.
DATE: March 25, 2011