Court File and Parties

Court File No.: Parry Sound FO-2008-87-0001 Date: 2012-06-11 Ontario Court of Justice

Between: Catherine Ann Squirrell Applicant

— And —

Timothy Robert Squirrell Respondent

Before: Justice L.J. Klein

Heard on: March 23, 2012

Reasons for Judgment released: May 7, 2012

Costs Decision released: June 11, 2012

Counsel:

• B. Oldham for the applicant(s)
• Timothy Squirrell on his own behalf

Judgment

KLEIN, J.:

Background

[1] The decision in this case was released on May 7, 2012. The hearing was over the Respondent's motion to vary child support due to a reduction in his annual income since the execution of an Amended Separation Agreement dated 20 April 2009. The Respondent's motion was denied and the parties were invited to make written submissions on the issue of costs. The Applicant's submissions were made by the deadline date of May 18, 2012. The Respondent did not make submissions by June 1, 2012 as required in my judgment of May 7, 2012.

[2] The Applicant seeks her costs in the amount of $3000 plus HST.

Legal Framework for Costs

[3] The Ontario Court of Appeal in Serra v. Serra, [2009] O.J. No. 1995, clearly stated that "modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants" while also bearing in mind that such costs awards should reflect what the court views as a fair and realistic amount that should be paid by the unsuccessful party.

[4] Rule 24(3) of the Family Law Rules (the "rules"), creates a presumption of costs being awarded in favour of the successful litigant. This consideration of success is the starting point for arriving at the costs award. In determining whether a party has been successful, the court should take into account how the order compares to any offers of settlement that may have been made by either party. The positions taken and advanced by the parties at trial should also be considered.

Analysis of Success

[5] Neither party made an offer to settle or, at least, a formal offer to settle in writing. Thus the final order stands alone.

[6] Turning next to the position taken at the motion, this is where the Applicant was successful. It was her position that new paragraph 6.4 in the Amended Separation Agreement was clearly intended by the parties to limit their trips to the courts or their counsel except where there was a drastic change in either parent's income. For various reasons, I was of the opinion that indeed that was the reason for the inclusion of that clause and that the Respondent had not met that threshold. The Applicant is entitled to partial indemnity costs.

Factors in Costs

[7] In making this decision I have considered the factors set out in subrule 24(11), which reads as follows:

(11) Factors in costs. – A person setting the amount of costs shall consider,

(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.

[8] The Applicant submitted a draft account. The rates submitted by Ms. Oldham were reasonable. The time attributed to Ms. Oldham's work on the file was not unreasonable. She claims $3,918.28 inclusive of HST for preparation and attendance on the day of the motion.

[9] Again turning to Serra v. Serra (para. 12) "costs awards, at the end of the day, should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties: see Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291, at para. 24." Assessing costs is not simply a mechanical exercise. Justice David R. Aston in Delellis v. Delellis and Delellis, [2005] O.J. No. 4345 (Ont. Fam. Ct.) (para. 9) wrote: "costs must be proportional to the amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant."

[10] The Respondent has the financial ability to pay the costs that I will award.

Costs Award

[11] Taking into consideration all of these factors, I will award the Applicant the sum of $3000 for her fees, expenses, disbursements and HST. The Respondent may repay these costs at the rate of $250.00 each month commencing on August 1, 2012. However, if he is more than 30 days in default of any ongoing support or costs order payment, the entire amount shall immediately become due and payable.

[12] Costs are payable as support and may be enforced as an incident of support by the Director, Family Responsibility Office.

Released: June 11, 2012

Signed: Justice L.J. Klein