ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 188/87
DATE: 2012/05/31

BETWEEN:

KATHLEEN MARGARET HOWE

Mark F. Dedinsky, for the Applicant

Applicant

• and -

TIMOTHY HOWE

James D. Almas, for the Respondent

Respondent

The Honourable Madam Justice W.L. MacPherson

COSTS ENDORSEMENT

[1] Although this proceeding was commenced as an Application, it was in essence a Motion to Change brought by the Applicant. The trial lasted three days. My reasons for judgment were released on May 8, 2012. The Applicant had been seeking spousal support after a delay of 24 years. All of the Applicant’s claims were dismissed.

[2] Counsel for each of the parties was invited to make written submissions and I have now had an opportunity to review those submissions.

[3] The Applicant’s counsel requests an Order that each party be responsible for their own costs. There was a possibility of the Applicant succeeding in her claim and she has no ability to pay costs given that at the time of trial, she was in receipt of Ontario Works.

[4] The Respondent’s counsel submits that he is entitled to costs on a substantial indemnity basis and seeks an Order in the amount of $13,310.28, inclusive of disbursements and HST.

[5] The starting point in determining costs is success, with the successful party being presumed to be entitled to recover costs (Rule 24 (1) of the Family Law Rules).

[6] Although there had been a finding made that there had been a material change in the circumstances of the Applicant, to the extent that she did not persuade me that she was entitled to spousal support nor that there was a reasonable explanation for the lengthy delay in bringing this proceeding, the Respondent was the successful party on the Motion to Change and is entitled to costs.

[7] Rule 18 deals with Offers to Settle. Neither party made any formal Offers to Settle, although in January 2012, the Respondent’s counsel had proposed that the Applicant withdraw all of her claims before additional costs were incurred.

[8] Under Rule 24 (11) the other factors to be considered in determining costs include the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; expenses properly paid or payable; and any other relevant matter.

[9] This matter was important to both parties. Given the Applicant’s current financial situation, she is in difficult financial straits, but I found much of this to have been caused by her imprudent financial decisions, rather than being related to the marriage and marriage breakdown. There was nothing overly complex about these matters.

[10] Having reviewed the Bill of Costs of the Respondent’s counsel and when looked at in the context of the Bill of Costs of the Applicant’s counsel, I am satisfied that the time spent by Respondent’s counsel was reasonable and that the hourly rate charged was appropriate.

[11] Under Rule 24 (10) and as confirmed by the Court of Appeal in Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416, costs are to be decided at each step. Although it is clear that in certain circumstances, the Court may consider additional steps taken prior to trial when determining the amount of costs to be paid, this is not an appropriate case to do so.

[12] As set out in Serra v. Serra :

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: Fong v. Chan 1999 2052 (ON CA) (1999) 46 O.R. (3d) 330 at para. 22 .

[13] As is clear from Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA) , 71 O.R. (3 rd ) 291 (C.A.):

...The fixing of costs does not begin or end with the calculation of hours times rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than the amount fixed by the actual costs incurred by the successful litigant.

[14] The Applicant chose to pursue a claim for spousal support and was unsuccessful in doing so. Although her counsel was prepared to represent his client on a pro bono basis, the Applicant must have known that if she did not succeed, there would likely be some cost consequences.

[15] Taking into consideration the applicable factors as set out in Rule 24 of the Family Law Rules and the principles enunciated by the Ontario Court of Appeal, as well as the particular circumstances of this case, the costs payable by the Applicant to the Respondent are fixed in the amount of $7,000.00 inclusive of disbursements and HST.

MacPherson J.

Released: May 31, 2012

COURT FILE NO.: 188/87
DATE: 2012/05/31

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: KATHLEEN MARGARET HOWE Applicant - and - TIMOTHY HOWE Respondent COSTS ENDORSEMENT W.L. MacPherson J.

Released: May 31, 2012