SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 04-FL-1277-01
DATE: 2012/09/12
RE: Scott Thompson, Applicant
AND
Nancy Gilchrist, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
None for the Applicant
Wade L. Smith for the Respondent
HEARD: In Writing
DECISION ON COSTS
[1] Pursuant to the Judgment dated July 13, 2012, the parties have provided me with their written submissions with respect to costs.
[2] Ms. Gilchrist is seeking costs on a full recovery basis including the pre-trial motion totaling $25,323.25 inclusive of disbursements and taxes, which includes $500 for preparation of the Bill of Costs itself. Mr. Thompson is seeking to have no costs ordered against him, or if costs are ordered he proposes an amount of $7,500 that he will consent to pay by way of a transfer from his Locked-In Retirement Account which he believes is available.
[3] I have assessed the issue and the parties’ positions in light of Rule 24, and in particular sub-rules (1) through (11).
[4] Regarding sub-rule 24(1), I made a significant reduction of the spousal support payable to Ms. Gilchrist which lends itself to a minor apportioning of costs (see sub-rule 24(6)). Notwithstanding this, Ms. Gilchrist was still substantially successful at trial and is presumed to be entitled to costs.
[5] Sub-rules 24(2) and (3) do not apply.
[6] Ms. Gilchrist behaved reasonably throughout. Both sides were well prepared for the trial. I do not find any bad faith on the part of Mr. Thompson to the level that would merit a full recovery of costs. The trial was run efficiently by Mr. Smith on behalf of Ms. Gilchrist. As such none of sub-rules 24(4), (7), (8), and (9) impact on my decision.
[7] This leaves me to consider the factors in sub-rule 24(11). In looking at 24(11)(a), the issues in this trial were not particularly complex. In looking at reasonableness in 24(11)(b) (and the criteria in 24(5)), I did not find that either party’s behavior (as opposed to position) in the case was unduly unreasonable. Mr. Thompson did make several Offers to Settle, but they were not by any measure or on any point as favourable or more favourable than the final orders. I do not find that the making of the offers supports Mr. Thompson’s position on costs.
[8] Regarding sub-rules 24(11)(c) through (e), Mr. Smith on behalf of Ms. Gilchrist has submitted a Bill of Costs on a full recovery basis for the amount noted. I have not in my analysis made any finding that the costs should be awarded on a scale higher than the generally intended partial indemnity basis: see Cook v. Cook , 2012 ONSC 1141 , [2012] O.J. No. 677, at para. 24. Mr. Thompson argues based on subrule 24(10) that the Bill of Costs should not include conferences and I agree. As the trial judge I am not awarding costs for preliminary steps (conferences and motions) that have been addressed by another judge where the costs have not been reserved to trial: see Islam v. Rahman (2007), 2007 ONCA 622 , 41 R.F.L. (6 th ) 10. This does not mean, however, that I agree with Mr. Thompson that the cost order should only relate to matters concerning the trial. As clarified in Houston v. Houston , 2012 ONSC 233 , (2012) 12 R.F.L. (7 th ) 115 (Div. Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule.
[9] Ms. Gilchrist indicates that she is not claiming costs regarding the difficult issue of custody and access that was settled before trial. With the conferences removed from the Bill of Costs, over a quarter of the remaining bill is for correspondence to/from the client, opposing counsel, and the court, as well as communications between the lawyer and client. I view the sum of over $6,000 for these items (Items 1 through 3 of the Bill of Costs) dealing only with the financial issues to be somewhat high.
[10] Regarding sub-rule 24(11)(f) (“any other relevant matter”) it is well established (for example see Murray v. Murray (2005), 79 O.R. (3d) 147 (C.A.)) that this can include taking into account the financial situation of both parties. Mr. Thompson has a limited ability to pay costs. Ms. Gilchrist in turn has no ability to absorb her own costs. While the means and needs of both parties in this case have been considered, Mr. Thompson’s current limited financial resources do not afford him immunity to a costs order: M.(L.C.) v. V.(C.A.) (2003), 49 R.F.L. (5 th ) 439 (Ont. S.C.J.).
[11] In weighing the factors above and the overriding principle that the goal is to fix costs in a way that is fair to the parties and reasonable in the circumstances (per Murray, supra , and Katz v. Nimelman (2008), 2008 14541 (ON SC) , 54 R.F.L. (6 th ) 177 (Ont. S.C.J.)), I make an award of $12,000 costs to Ms. Gilchrist inclusive of disbursements and GST, enforceable as support.
Mr. Justice Timothy Minnema
Date: September 12, 2012
COURT FILE NO.: 04-FL-1277-01
DATE: 2012/09/12
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Scott Thompson, Applicant
AND Nancy Gilchrist, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: None for the Applicant
Wade L. Smith, for the Respondent
DECISION ON COSTS
Mr. Justice Timothy Minnema
Released: September 12, 2012