Court File and Parties

CITATION: Dean v. Dean, 2016 ONSC 5603

DIVISIONAL COURT FILE NO.: 154/16

DATE: 2016-09-12

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JAMES EDWARD DEAN, Applicant/Respondent

AND:

VESNA DEAN, Respondent/Appellant

BEFORE: A.C.J.S.C. MARROCCO, C. HORKINS and M. VARPIO JJ.

COUNSEL: Iain Sneddon, for the Applicant /Respondent

Kenneth J. Peacocke, for the Appellant

HEARD at Toronto: In Writing

ENDORSEMENT

Overview

[1] In Reasons for Judgment released on June 30, 2016 (2016 ONSC 4298), this court allowed the appellant’s appeal from the order of Gorman J. dated February 13, 2015. The order was set aside.

[2] Gorman J. had reduced the appellant’s spousal support and had ordered the appellant to pay the respondent his costs of the motion, fixed at $20,000.

[3] The relief that this court granted is set out in para. 118 of the Reasons for Judgment as follows:

[118] I make the following orders:

(1) The appellant’s appeal is allowed.

(2) The order of Harper J. dated December 1, 2009 is restored. The respondent shall pay the appellant $1,500 a month for spousal support pursuant to the December 1, 2009 order.

(3) The order of Gorman J. dated February 13, 2015 is set aside. This is retroactive to the date of the commencement of the variation on November 1, 2013.

(4) The respondent shall pay the appellant any past spousal support that he owes.

(5) The costs order of Gorman J. dated April 8, 2015 is set aside, and the respondent is ordered to repay these costs to the appellant to the extent that the appellant has paid the costs.

(6) The parties have agreed on the costs of the appeal. The respondent shall pay the appellant costs of this appeal fixed at $9,000 all inclusive.

[4] After release of the Reasons for Judgment and before issuance of the final order, the appellant wrote to the court and requested an opportunity to make submissions on her request for costs of the motion before Gorman J.

[5] In her notice of appeal, the appellant requested her costs of this motion if successful on her appeal. The appellant’s counsel did not address these costs during oral submissions.

[6] The parties were given an opportunity to file brief written submissions.

[7] The appellant seeks partial indemnity costs of the underlying motion in the amount of $14,604.53, inclusive of HST and disbursements.

[8] The respondent disputes the appellant’s right to requests her costs of the motion before Gorman J. It is his position that this court dealt with this issue in para. 118(5) of the Reasons for Judgment.

[9] Further, the respondent states that the appellant should have made submissions at the hearing of the appeal. If the failure to make submissions was an accident or an omission, the respondent argues that the appellant should bring a motion pursuant to rule 59.06(1) to amend the order.

The appellant is entitled to her costs

[10] Until the order in question is signed, issued and entered, the court can amend or alter its ruling to correct any errors or oversights. Although the court’s discretion is broad, it must be exercised with caution (see Montague v. Bank of Nova Scotia (2004), 2004 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), at para. 34; Pammett v. 1230174 Ontario Inc., 2014 ONSC 4072 at para. 4; Stradiotto v. BMO Nesbitt Burns Inc., 2015 ONSC 461 at paras.8-9; Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2016 ONSC 2455 at para. 4).

[11] The order from this appeal has not been issued and entered. As a result, this court has the discretion to correct the oversight and deal with the request.

[12] The Reasons for Judgment did not address the appellant’s requests for her costs of the motion before Gorman J. Paragraph 118 sets out the orders that were made. The appeal was allowed and the order of Gorman J. was set aside. Paragraphs 118(4) and (5) were required to address the underpayment of spousal support since the order of Gorman J. and the requirement that the respondent repay the costs that the appellant had paid under that order. Paragraph 118(5) does not deal with the appellant’s request for costs of the underlying motion.

[13] While the appellant’s notice of appeal requests costs of the motion, the issue was not argued during the hearing of the appeal and the court did not address this relief in the Reasons for Judgment. This was a mere oversight and one that should be remedied, since costs of the original hearing are typically allowed on a successful appeal.

[14] The appellant made her request for costs by filing a written submission. The respondent argues that she should have filed a notice of motion. If a notice of motion is required, this court has the discretion to relieve the appellant from such non-compliance, pursuant to rule 2.01(1)(a) of the Rules of Civil Procedure. This is a simple matter of an oversight. The parties have been given a full opportunity to make submissions and there is no prejudice to the respondent. To secure a just determination of the underlying costs, relief is granted under rule 2.01(1)(a).

[15] The appellant’s request for partial indemnity costs of $14,604.53 is reasonable. The motion to change the final order before Gorman J. lasted 1.5 days. Counsel spent 25 hours leading up to the motion. The issues were important to both parties and were of moderate complexity. The time incurred by the respondent is an indicator of what he would expect to pay for reasonable costs. The respondent’s counsel spent 68.4 hours and sought partial indemnity fees of $22,766.68. This exceeds the appellant’s request for costs. The motion judge allowed costs of $20,000.

[16] The appellant was successful on her appeal and is entitled to an award for costs of the underlying motion. I fix her costs at $14,604.53, inclusive of HST and disbursements. This is fair and reasonable (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)).

[17] The respondent shall pay the appellant her costs of the motion fixed at $14,604.53.

C. Horkins J.

A.C.J.S.C. Marrocco

M. Varpio J.

Date: 20160812