ONTARIO
Court File Number: 01-FP-270127
Ontario Superior Court of Justice
(Name of Court)
Endorsement
at
Toronto
(Court office address)
Date
Applicant(s):
JOAN ROSS
X
Present
Heard in writing
Counsel:
in person
Present
Duty Counsel
Respondent(s):
JOHN C. ROSS
X
Present
Counsel:
Farrah K. Keshwani
x
Present
Duty Counsel
Order to go in accordance with minutes of settlement or consent filed.
ENDORSEMENT ON COSTS OF MOTION TO CHANGE HEARD APRIL 23, 2012
[1] I have now received the parties’ submissions on costs on the applicant’s unsuccessful motion to change. On the motion as argued, the applicant sought to change the support provisions of the final order of Backhouse J. dated June 30, 2005 by first, terminating her child support obligations; second, rescinding or alternatively staying enforcement of arrears of child support; and third, requiring the respondent to pay spousal support to her. She had also brought a motion to find the respondent in contempt.
[2] The only success the applicant achieved was in having enforcement of child support stayed until November 2, 2012. Her other claims were dismissed, as was her claim for a finding of contempt against the respondent. Under these circumstances, I find the respondent has enjoyed substantial success on the motion as framed and argued before me. The respondent is entitled to his costs.
[3] The respondent suggests that he should be entitled to complete recovery costs throughout. He points to various factors to support his position. For her part, the applicant suggests that success was either divided, or that she enjoyed more success than the respondent. She takes the position she should be entitled to costs. I reject each party’s position.
[4] First, when I look at the motion to change itself, and the applicant’s claim to have the respondent found in contempt, it is the respondent who has been overwhelming successful. He is entitled to costs; the applicant is not.
[5] This brings me to the appropriate scale and quantum of costs. The respondent suggests that full recovery costs should be awarded because of what he characterizes as the applicant’s unreasonable behaviour, and the effect of the various offers he made to settle matters.
[6] While the applicant’s conduct throughout the motion to change could be characterized as unreasonable, I do not find it so unreasonable as to warrant what would effectively be a punitive award of costs throughout, particularly in light of the fact that the applicant is apparently not currently employed (although, as I have said, I have no doubt she could find employment.)
[7] As to the respondent’s offers, the offer that bears on my determination is his offer of March 27, 2012. In it, he proposed the contempt motion and the motion to change be withdrawn without costs. He also agreed to make a further contribution of $1,200 to the reintegration process with Dr. Irving. Most importantly, the respondent offered to have child support terminate as of October 1, 2011 and enforcement of arrears to be suspended until August 1, 2012.
[8] When I consider the totality of this offer against the order I made, I can only conclude that the applicant would have been better off had she accepted this offer. I recognize that the suspension of enforcement under the offer was for a period three months shorter than the one I imposed. I cannot look at this in isolation, however. Not only did I not terminate child support, I increased it in accordance with the new Child Support Guidelines tables. The respondent’s offer, as a whole, would have given the applicant a more favourable result that the one she achieved.
[9] The applicant also suggests that I should consider her “success” in relation to the reintegration issue. That issue was not actually part of the motion to change as argued. Justice Goodman has been case managing that aspect of the case, and continues to do so. As a result, I do not give the reintegration issue any weight in my costs disposition.
[10] When I look at the respondent’s offer of March 27, 2012, the result on the motion to change, and the provisions of subrule 18(14) of the Family Law Rules I conclude that respondent is entitled to partial recovery costs to March 27, 2012, and full recovery costs thereafter. I see no reason to depart from the provisions of the rule that impose this result.
[11] The respondent’s counsel has submitted a comprehensive bill of costs. I have no difficulty accepting the hours spent, or the actual billing rates charged. The respondent’s counsel is, however, only entitled to full recovery costs from March 27 onward. Having regard to the Notice to the Profession in the Rules of Civil Procedure concerning costs, I accept the rates there as reasonable for partial recovery costs. Therefore, until March 27, Ms. Seaton is entitled, as counsel with more than 20 years’ experience, to a rate of $350 per hour. Ms. Keshwani is entitled to $60 per hour for the period she was an articling student, and to $225 per hour as a lawyer with less than 10 years’ experience. Similarly, the law clerk’s time can be charged at a maximum of $80 per hour for the time when partial recovery rates apply.
[12] When I apply these adjusted rates to the time spent I conclude the respondent is entitled to his costs fixed at $23,490 (rounded) for fees, plus $3,053.70 for HST, for a total of $26,543.70.
[13] The respondent will therefore have his costs of the motion to change, fixed at $26,543.70 all inclusive.
MESBUR J.
Released: 20120530