ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-2321
DATE: 20120606

BETWEEN:

BRADFORD JOSHUA LANDON Applicant – and – NATASHA LANDON Respondent

Ian C. Vallance, for the Applicant
Beverley Johnston , for the Respondent

Heard by written submissions

DECISION REGARDING COSTS

R. Smith J.

Positions of Parties

[ 1 ] The respondent seeks costs on a full recovery basis in the amount of $15,240.00 plus HST of $1,981.20 for a total of $17,221.20 plus disbursements of $1,539.18. The respondent seeks full indemnity costs because she was successful on all issues at the motion and the applicant’s conduct was unreasonable. The above amount also includes costs for the two case conferences which were reserved to the motion judge.

[ 2 ] The applicant submits that the costs issue should be adjourned to the judge hearing the matter after the custody assessment is received, or that I fix the costs but leave the issue of whether they are to be paid to be dealt with on the return of the motion. Finally, in the further alternative, the applicant submits that costs be fixed in the amount of $7,500.00 be payable to the respondent.

Factors

[ 3 ] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules , O. Reg. 114/99 and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.

Success

[ 4 ] In this case, the respondent mother was successful on all issues dealt with at the motion; however, the main issues of interim access and custody were left to be determined after the custody assessment was completed. The parties both agreed that an assessment was required and they ultimately agreed on Dr. Alex Weinberger. The respondent was successful in obtaining an order for child support and the sale of matrimonial home, however the applicant was given the option to purchase the home if he wished.

Complexity and Importance

[ 5 ] The matter was a full day motion involving custody access, supervised access, sale of the matrimonial home, and was of average complexity but was much longer than a regular motion. The issues were important to the parties.

Unreasonable Behaviour or Bad Faith

[ 6 ] It is difficult to determine if the applicant had behaved unreasonably as both parties ultimately agreed to an assessment and agreed on the assessor at the motion. This matter should have been agreed upon by both parties without requiring a motion to choose the assessor. The respondent had proposed that the assessment be conducted by Dr. Weinberger approximately two months before the motion.

[ 7 ] The child support should also have been paid voluntarily by the father in accordance with the guidelines. However, he made some payments and he paid the mortgage but he also resided in the home. The father would not advise the respondent’s counsel when he intended to purchase the matrimonial home but would only state that he wished to purchase the property. Given the issues involved and the requirement for financing, I do not find that this was reasonable in the circumstances.

Scale of Costs and Offers to Settle

[ 8 ] I agree with the applicant that costs are not appropriate on a full indemnity basis in the circumstances. Full recovery costs are rarely ordered and are limited to circumstances where the parties’ conduct was unreasonable such that it would be considered outrageous, scandalous, or vexatious or if an Offer to Settle was exceeded. I do not find that any of these conditions have been met and, as a result, the costs will be assessed on a partial indemnity basis.

Hourly rates, Time spent and Proportionality

[ 9 ] The full indemnity hourly rate claimed is reasonable, however, I would reduce the rate to that for partial indemnity costs. The applicant did not object to the hourly rate other than to the scale of costs. The applicant also did not dispute the time spent as there had been a number of proceedings including two case conferences, some 10 affidavits filed by the applicant and a number of affidavits filed in response. There was questioning of the parties and there were a number of issues involved on the motion which lasted a full day.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[ 10 ] The applicant made the alternative submission that costs should be fixed in the amount of $7,500.00. Without seeing the applicants’ Bill of Costs or a Costs Outline, as provided in the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, it is difficult to determine the costs incurred by the applicant. Neither party made submissions on this point. I will infer that an amount in the range of $7,500.00 is what the unsuccessful party would reasonably expect to pay.

[ 11 ] Costs are to be fixed following the event. In this case, the respondent was agreeable to having the issue of additional access to the father be determined after the assessment was completed which will involve approximately a further two month period.

[ 12 ] On January 13, 2011, two and one-half months before the motion, the respondent suggested that the assessment be conducted by Dr. Weinberger. Had this suggestion been accepted by the applicant, there is a reasonable possibility that the assessment would have been completed and received before the motion was heard. Substantial amount of costs would have been saved for both parties if this proposal had been accepted.

Disposition

[ 13 ] Having weighed the about factors, the applicant is ordered to pay the respondent costs in the amount of $10,000.00 plus HST and disbursements of $1,500.00 inclusive of HST.

R. Smith J.

Released: June 6, 2012

COURT FILE NO.: FC-11-2321
DATE: 20120606

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BRADFORD JOSHUA LANDON Applicant – and – NATASHA LANDON Respondent DECISION REGARDING COSTS R. Smith J.

Released: June 6, 2012