Court File and Parties
Date: September 26, 2017
Court File No.: D90073/16
Ontario Court of Justice
Between:
Starlaine Hermanson
Applicant
- and -
Ben Mwangi Kiarie
Respondent
Counsel:
- Kenneth E. Snider, for the Applicant
- Sage Harvey, for the Respondent
Heard: In Chambers
Justice: S.B. Sherr
Costs Endorsement
[1] On September 5, 2017, the court released its reasons for decision arising out of a focused trial where the respondent (the father) sought an order prohibiting the applicant (the mother) from changing the names of the parties' three children. See: Hermanson v. Kiarie, 2017 ONCJ 598.
[2] The court dismissed this claim, although on consent of the mother, the court prohibited her from changing the names of the children to any names other than those proposed by her.
[3] The court gave the mother the right to make written costs submissions if the issue could not be resolved. The issue was not resolved.
[4] The mother seeks costs of $1,356 from the father. The father submits that costs should be fixed at $500.
[5] 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.
[6] Subrule 24(1) of the Family Law Rules (all references to rules in this endorsement are the Family Law Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ-Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson, [2008] O.J. No. 1978 (SCJ).
[7] No offers to settle were made. This was not surprising given that there was little room for compromise on this remaining issue.
[8] The mother was the successful party. The presumption that she is entitled to costs was not rebutted.
[9] In making this decision, the court considered the factors set out in subrule 24(11), 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.
[10] The case was important for the parties. There was some complexity in the legal issue before the court, but only the father produced case law at the trial. The case was not difficult.
[11] The parties both acted reasonably. They are to be commended for resolving all but this issue in the case management process. Counsel are also commended for working together to structure a focused and cost-effective process for resolving this final issue. By doing so, they achieved a timely resolution of the case.
[12] Although he was unsuccessful at trial, the father's position about the proposed name change was understandable.
[13] The rates and time claimed by the mother's counsel are reasonable and proportionate.
[14] The father has the ability to pay the costs that will be ordered.
[15] Taking into account all of these considerations, an order shall go that the father shall pay the mother's costs fixed in the amount of $1,000, inclusive of fees, disbursements and HST. The father may pay these costs at $200 each month, starting on November 1, 2017.
Released: September 26, 2017
Justice S.B. Sherr