Court File and Parties

Court File No.: D48687/09 Date: 2012-10-09

Ontario Court of Justice

Toronto North Family Court

Between:

Nikki McAlister Applicant

- and -

Carmi Gallant Respondent

Counsel:

• Jonathan Kline, for the Applicant
• Daryl Gelgoot and Meghan Lawson, for the Respondent

Heard: In Chambers

Justice: S.B. Sherr

Costs Endorsement

Part One - Introduction

[1] On September 10, 2012 I released my decision dismissing the respondent's motion to set aside or vacate an arbitrator's award, remove the arbitrator, declare the mediation/arbitration agreement void, stay the arbitration, and determine what school the parties' child attends in the 2012/2013 school year. I gave the applicant the opportunity to make written costs submissions.

[2] The applicant served and filed written costs submissions. She seeks full indemnity costs of $4,788.38. The respondent served and filed written costs submissions and asks that no costs order be made.

Part Two – Analysis

[3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.) stated that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[4] Sub-rule 24(1) of the Family Law Rules (the rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ- Family Court).

[5] The applicant was clearly the successful party on the motion as the respondent's motion was dismissed in its entirety. The respondent did not rebut the presumption of her entitlement to costs.

[6] In making this decision, I considered the factors set out in sub-rule 24(11) of the rules, which reads as follows:

24(11) 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.

[7] The case was important for the parties. It involved some legal complexity as it involved jurisdictional issues.

[8] The behaviour of the parties on the motion was reasonable.

[9] I have reviewed the rates submitted by counsel for the applicant. They are very reasonable.

[10] Sub-rule 24(10) of the rules sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A "step" in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. Husein v. Chatoor, 2005 ONCJ 487, [2005] O.J. No. 5715 (OCJ). The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. Islam v. Rahman, 2007 ONCA 622.

[11] The applicant did not prepare fresh affidavit material for this motion. She relied on her affidavit sworn on June 25, 2012. This affidavit was prepared in response to the respondent's motion returnable on June 28, 2012 before Justice Robert Spence. That motion sought an order for specified summer access. The respondent set out in that notice of motion that one of his grounds for the relief sought was that the mediator/arbitrator had resigned.

[12] Justice Spence endorsed as follows on the return of the motion:

Father seeks an order from the court setting the summer access schedule.

Parties had previously agreed to a med/arb agreement.

Parties have worked out a summer access agreement which they will execute out of court as the mother does not attorn to the court's jurisdiction.

[13] There was no costs order for this appearance.

[14] The applicant, in her bill of costs for this motion, claims 12.5 hours for the time spent preparing the June 25, 2012 affidavit. The respondent argues that since costs were not awarded for the previous motion, the applicant cannot now claim time for work that was attributable to the previous step in the case.

[15] It is evident from reading the material for the June 28, 2012 motion that the jurisdiction of the court to hear the respondent's motion, based on the purported resignation of the mediator/arbitrator was squarely in issue. The endorsement of Justice Spence makes it clear that the parties did not argue the jurisdiction issue on the return of the motion – they resolved the access issue, with the mother not attorning to the court's jurisdiction. The jurisdiction issue was essentially tabled. Any failure of the applicant to seek costs on the June 28, 2012 motion is only related to the access issue. When the respondent brought the current motion, the jurisdiction issue was revived. The applicant saved legal costs by relying on the evidence contained in her June 25, 2012 affidavit regarding the resignation of the mediator/arbitrator and the history of the mediation/arbitration process between the parties instead of reframing the evidence in a new affidavit for this motion. It is appropriate to attribute the time spent preparing this portion of her affidavit to this step in the case.

[16] However, a significant portion of the applicant's June 25, 2012 affidavit dealt with the access issues that were resolved on June 28, 2012. This portion of the applicant's affidavit was attributable to a prior step in the case and shouldn't be compensated on this motion.

[17] The balance of the time claimed by the applicant on this motion is reasonable.

[18] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis, [2005] O.J. No. 4345. Both these cases point out that when assessing costs it is "not simply a mechanical exercise." In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon "hours spent times hourly rates" when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an 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.

[19] Taking into account all of the circumstances set out above, I order that the respondent shall pay the applicant her costs fixed at $2,500 inclusive of fees, disbursements and HST. This shall be payable forthwith.

Justice S.B. Sherr

Released: October 9, 2012