SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-70994
DATE: 20120109

RE: SEAN TUDOR HUGHES
Applicant

v.

PATRICIA BONNIE HUGHES
Respondent

BEFORE: O’CONNOR J.

COUNSEL:
W. John McCulligh, for the Applicant
Patricia Hughes, In Person

COSTS ENDORSEMENT

[ 1 ] The parties have been involved in a moderately lengthy, relatively uncomplicated separation and divorce proceeding.

[ 2 ] On December 9, 2011, they attended on a motion, both represented by counsel. The Respondent wife sought spousal support, plus costs fixed at $5,000.

[ 3 ] On November 15, 2011, she served an Offer to Settle on the Applicant husband wherein she offered:

To accept $900 per month by way of spousal support, commencing December 1, 2011 until a material change occurs (this being the same amount previously ordered to be paid for each of the months of October and November, 2011).

To sever the divorce from the other issues and the husband to “take out the Divorce”.

To accept payment of her costs incurred since the commencement of the proceedings to the date of the offer, fixed at $5,000.

[ 4 ] The Applicant husband rejected the offer and the matter proceeded to Motions Court on December 9, 2011. Before the matter was heard by the Court the parties settled some of the issues, allowing the Court to make an order on consent, as follows:

The husband to pay the wife $900 per month by way of spousal support on the 20 th of each month, commencing December 20, 2011, until a material change or further order.

The divorce to be severed from the other claims and “…to proceed as an ex parte over the counter matter. The husband shall take out the divorce order.”

The issue of retroactive support to be reserved to the trial of the matter.

Costs of today - parties shall submit cost submissions in writing, submissions limited to no more than four (4) pages each.

[ 5 ] I ordered written submissions to be delivered within 10 days.

[ 6 ] The husband seeks no costs at this time but requests that they be reserved to the trial judge. The wife seeks her costs from the outset of the proceeding, on a partial indemnity basis, of $8,846.54 inclusive of fees, disbursements and HST.

[ 7 ] The matter was before the Court on August 3, 2011, when the parties consented to an order that the husband provide financial information and that the parties be at liberty to bring motions, if necessary. It appears no costs were sought or ordered. It was again before the Court on September 13, 2011, when, again on consent the court ordered the payment of $900 spousal support for the months of October and November, 2011, and adjourned to November 17, to permit cross-examinations on Affidavits. Again, no costs were sought or ordered.

[ 8 ] Rule 24(10) provides that a judge should promptly after each step in the case decide in a summary manner, who is entitled to costs and set the amount of same. Thus, if a party wishes costs they should seek same at each step, by raising the issue at a contested hearing or including same in a consent or minutes of settlement if the matter is resolved before the hearing. If the costs of a proceeding are not sought and/or are not ordered reserved to a future Court or trial, they may not be sought at a subsequent proceeding. Islam v. Raham , 2007 ONCA 622 , [2007] O.J. No. 3416 (O.C.A.); Gammon v. Gammon, 2008 54968 (ON SC) , [2008] O.J. No. 4252. In Islam , the Court of Appeal said at para. 2:

In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowed costs claimed by the respondent in relation to such steps.

[ 9 ] Thus, it is incumbent on the party to raise the issue of costs if they wish the Court to deal with them at a particular step in the proceeding, failing which they may not be sought at a later date. In this case, it appears the issue of costs was not addressed at any previous step.

[ 10 ] The wife may not now seek her costs “…incurred from the commencement of the proceeding to date.” She may seek costs and the Court may order same only for the motion dealt with on December 9, 2011.

[ 11 ] On this motion the wife has been wholly successful respecting the support issue. It is noted that her offer to settle was made November 15, about three weeks prior to the motion date. As it was not accepted, counsel for the Respondent claims he was required to spend 15.60 hours in preparation and attendance on the motion. The motion was to deal with one issue only which was not complex. Counsel is an experienced barrister, having been practicing for 27 years. I find the time spent related to this motion only should not have exceeded 10 hours, plus preparation of costs submissions of two hours, for a total of 12 hours.

[ 12 ] To the credit of the husband he consented to an order as set out above, before the matter was argued, thus obviating the cost of arguing a contested motion and possible further delay if the Court had taken the matter under reserve. However, the husband should have accepted the offer before putting his wife to the expense of her counsel’s preparation and attendance at Court. Alternatively, he could have made a reasonable counter-offer. If he had, he may have saved himself considerable money.

[ 13 ] The Respondent wife is entitled to her costs on a full indemnity basis for the preparation and attendance on this motion plus submissions on costs, which I assess at $3,900 (12 hours at $325.00 per hour), plus disbursements of $238.21 and HST on the fees and disbursements of $537.97 for a total of $4,676.17.

[ 14 ] Order to go requiring the Applicant husband pay to the respondent wife her costs fixed at $4,676.17, payment of which shall be enforced by FRO, if not paid within 30 days.

O’CONNOR J.

DATE: January 9, 2012

COURT FILE NO.: FS-11-70994

DATE: 20120109

SUPERIOR COURT OF JUSTICE - ONTARIO RE: SEAN TUDOR HUGHES v. PATRICIA BONNIE HUGHES BEFORE: O’CONNOR J. COUNSEL: W. John McCulligh, for the Applicant Patricia Hughes, In Person COSTS ENDORSEMENT O’CONNOR J.

DATE: January 9, 2012