ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-039097-00
DATE: 20121010

BETWEEN:

DONNA CATHERINE BOND Applicant – and – JOEL DAVID BOND Respondent

Kevin D. Zaldin, for the Applicant

Jason K. Allan, for the Respondent

HEARD: June 6-8, 2012

Ruling on costs

boswell j.

[1] On July 25, 2012, I released Reasons for Judgment in this proceeding, following a 3 day trial in June, 2012.

[2] There were two main issues at trial. Mrs. Bond, firstly, sought to set aside a Separation Agreement executed in August 2011, primarily on the basis that it was, in her view, unconscionable. Secondly, she sought an order for spousal support in an amount, and for a duration, substantially at variance with the provision for spousal support contained in the Separation Agreement.

[3] The background facts and the circumstances surrounding the formation and execution of the Separation Agreement are set out in my Reasons for Judgment, reported at 2012 ONSC 4374. Ultimately, I found no basis to justify setting aside the Separation Agreement. Accordingly, I confirmed the agreement and enforced its terms. On the other hand, I found that the provision for spousal support set out in the Separation Agreement did not meet the objectives of the Divorce Act and I made an order for spousal support at variance with the terms of the agreement.

[4] I invited the parties to make written submissions on costs. Both parties acknowledged, in their submissions, that there was divided success at trial. Nevertheless, each urged me to find that he or she had been the more successful party on balance.

[5] Rule 24(1) of the Family Law Rules establishes the presumption that a successful party is entitled to the costs of a case. Where success has been divided, the Court may apportion the costs as appropriate: Rule 24(6).

[6] The first issue to determine, then, is to what extent success was divided at trial. There were two main issues at trial, as I have noted. The Applicant was successful on the support issue, but not successful with respect to setting aside the agreement altogether. One might reasonably argue, under the circumstances, that success was evenly divided, with each party succeeding on one of the significant issues at trial. On the other hand, the Applicant sought two types of relief. While not wholly successful, she was partially successful, obtaining relief on one of the two heads pursued. Put another way, the status quo was represented by the existing Separation Agreement. Mrs. Bond wanted a change in the status quo. Mr. Bond resisted. A change in the status quo was ordered, not entirely what Mrs. Bond wanted, but certainly enough to support the conclusion that she had some success at trial. In my view, some modest costs must be assessed in her favour on that basis – in other words, on the basis that she was partially successful. These costs ought to be substantially lower than they might otherwise have been had she been wholly successful, or had she limited her argument to the issue of increased spousal support. The unsuccessful claim to set aside the Separation Agreement was a very significant part of these proceedings and the Respondent’s successful defence of that claim significantly ameliorates the costs award against him.

[7] Where fixing costs in favour of a successful or partially successful party, the Court is to be guided by those factors enumerated in Rule 24(11). That said, the overriding principles at play in the assessment of costs are those of fairness and reasonableness: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4 th ) 440 (Ont. C.A.).

[8] The Applicant’s counsel submitted a Costs Outline setting out total fees of $15,580 plus disbursements of $1,248.38. Partial Indemnity costs of $13,500 plus applicable taxes are sought, together with disbursements of $1,352.56, inclusive of applicable taxes.

[9] I have reviewed the Applicant’s Costs Outline and find nothing remarkable about it. As a general rule, “it is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered”: see Basedo v. University Health Network, [2002] O.J. No 597 (S.C.J.).

[10] Having said that, the assessment of costs is not a mechanical exercise. It is not simply a matter of calculating hours spent and multiplying them by an hourly rate. The Court must consider such factors as the complexity and importance of the issues, the reasonableness of the parties’ conduct during the litigation, as well as the overarching issues of proportionality and fairness. Amongst other things, proportionality requires the Court to assess what a losing party might reasonably expect to pay in costs in the circumstances and what a successful party might expect to receive by way of indemnification.

[11] The issues involved in the trial were, of course, of singular importance to the parties. The resolution of all issues arising out of the breakdown of their marriage was reflected in their Separation Agreement. That resolution was at stake. Had the agreement been set aside, the parties arguably would have been set back to square one in terms of negotiations. The spousal support, similarly, was a significant issue to them both for two principal reasons: (1) this is a family of modest resources, the allocation of which makes marked differences in each of their lives; and (2) the duration of the support is now indefinite, meaning the Court’s ruling will affect the parties for a very long time.

[12] The issues were of modest complexity. The test for setting aside a Separation Agreement is now well-settled, as is the test to be applied to an application of first instance for spousal support, in the face of an existing domestic contract in which support is addressed.

[13] Although parties to matrimonial litigation often allege unreasonable behaviour on the part of the other spouse and/or his or her lawyer, quite often those allegations are more reflective of the emotionally charged atmosphere of family litigation than they are of genuinely aberrant behaviour. In my view, there was no conduct evidenced by either party that would materially impact on a costs assessment.

[14] Ultimately, I return to the discussion of divided success and proportionality. Under the circumstances presented by this case, the Respondent would hope to pay little or no costs, but ought realistically to expect to pay some modest costs. From the Applicant’s point of view, she ought reasonably to expect to receive some award of costs, but she ought to expect that they will be modest, in view of the amount of time and resources dedicated to the issue she was unsuccessful on.

[15] In the result, having considered all of the foregoing, I fix costs in favour of the Applicant in the amount of $5,000, all inclusive, payable within 30 days. The costs sought are reflective of the claim for spousal support and shall, accordingly, be enforced by the Family Responsibility Office.

Boswell J.

Released: October 10, 2012