CITATION: C.M.M. v. D.G.C. 2015 ONSC 3290

DIVISIONAL COURT FILE NO.: 57/14

DATE: 20150525

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: C.M.M. v. D.G.C. and J.M.

BEFORE: MARROCCO A.C.J., LEDERMAN & NORDHEIMER JJ.

COUNSEL: J. Wilson & J. Braude, for the appellant

V. Ambrosino, for the respondent, D.G.C.

HEARD: Written submissions

ENDORSEMENT – COSTS

[1] On April 16, 2015, this court released its decision allowing C.M.M.’s appeal and setting aside the order of the motion judge requiring the appellant to have a litigation guardian for this proceeding. We invited written submissions on what the disposition should be of the costs of the appeal. We have now received and reviewed those submissions.

[2] The appellant seeks a costs award of $30,309.83 on a substantial indemnity basis. The respondent submits that there should be no award of costs on the basis that the appeal involved a novel legal issue and also engaged public interest elements. In the alternative, the respondent says that, if costs are to be awarded, the costs should be fixed in the range of $7,000.

[3] In approaching the task of fixing costs, we are cognizant of the general principles applicable to that task. In particular, we are aware that costs should be fixed in an amount that is fair and reasonable – see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). In that regard, we are cognizant of the general level of costs awards made by this court for similar matters in terms of their complexity and length of hearing.

[4] The appeal took slightly more than one-half day. It involved an issue that had not been previously determined and it involved an interpretation of the Family Law Rules which are, admittedly, not clear on the subject. The respondent submits that these factors made the issue a “novel” one and that, as a consequence, there should be no award of costs.

[5] The fact that an appeal may raise a novel issue is not, by itself, necessarily a reason not to award costs. Similarly, there is no rule that the first case to raise a particular issue should not attract a costs award. Someone always has to be first and there is always a public benefit to having a court clarify any legal issue. That reality does not mean, though, that no costs should be awarded in all such cases. As Smith J. said in Sierra Club of Western Canada v. British Columbia (Chief Forester), [1994] B.C.J. No. 1713 (S.C.) at para. 25:

I think there is a public benefit any time a court decision clarifies the law, but I do not think there is a general rule that no costs should be awarded in all such cases.

[6] We also do not accept the respondent’s position that there was a public interest dimension to this litigation such as to invoke the no costs orders that often accompany true public interest litigation of the type described in St. James’ Preservation Society v. Toronto (City), [2006] O.J. No. 2726 (S.C.J.).

[7] The fact is that the appellant was successful in her appeal. It is also a factor that, had the necessity for the appellant to have a litigation guardian prevailed, the appellant might have been effectively precluded from pursuing her claim for child support. The issue, therefore, was of particular importance to the appellant.

[8] The appellant submits that she should receive essentially full recovery for her costs based on the asserted principle that in family law proceedings the norm is that full recovery of costs will apply. The appellant relies, in particular, on the decision in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) where Perkins J. said, at para. 20:

I agree with Aston J. in Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.J. Fam. Ct.), citing Mallory v. Mallory, (1998), 35 R.F.L. (4th) 222 (Ont. S.C.J.), that the preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

[9] Assuming that such an approach prevails in family law proceedings, it does not extend, in our view, to appellate proceedings in this court. Rather, the normal rule in this court, that partial indemnity costs is the presumptive award to be made, applies. Substantial indemnity costs may be awarded in particular cases but only if the recognized grounds for an award of costs on that higher scale are met.[^1] None of those grounds apply in this case.

[10] In fixing the amount for costs, we have also taken into account that there were some costs incurred for the earlier hearing of this appeal that were of benefit to the second hearing – a reality that was referred to by the first panel who heard this matter in their costs endorsement: [2015] O.J. No. 1644 at para. 4.

[11] In the end result, we consider a fair and reasonable amount for the partial indemnity costs of the appellant to be $15,000 inclusive of disbursements and HST. This amount is to be paid by the respondent to the appellant within 30 days.

MARROCCO A.C.J.

LEDERMAN J.

NORDHEIMER J.

DATE:

[^1]: see, for example, Foulis v. Robinson (1979), 21 O. R. (2d) 769 (C.A.); Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.).