Superior Court of Justice - Ontario
Date: 2012-01-27
Docket: FS-11-367118
Re: Jillian Bassett, Applicant
And:
Matthew Bassett, Respondent
Before: Czutrin J.
Counsel:
Harold Niman and Erin Chaiton-Murray, for the Applicant
Lance Carey Talbot, for the Respondent
Heard: January 20, 2012
Endorsement
[ 1 ] If there remains an issue with settling my December 20, 2011 order, counsel may set time before me to settle order.
[ 2 ] With respect to costs of the motion heard December 20, 2011, the Applicant, based on submissions of success, seeks full indemnity scale costs of $14,774.19. She also seeks that at least three-quarters of the amount be enforceable by Family Responsibility Office (I assume because it relates to support).
[ 3 ] The Applicant relies on the Respondent’s bad faith in failing to comply with previous direction of Perkins J. that he could not proceed with his cross-motion because of his failure to attend Mandatory Information Session. I did not allow the cross-motion to proceed at this time.
[ 4 ] On the material, properly before me, I found that the Respondent failed to provide disclosure and satisfy the previous consent order of Aston J. of August 24, 2011.
[ 5 ] The Respondent’s costs submissions concede that, on the motion, the Applicant was largely successful. “This success should not trigger full indemnity costs”, for the following reasons:
Applicant made no offer to settle (Rule 18).
The Respondent consented to some of the disclosure in advance of the argument of the motion.
The Applicant was not totally successful on the disclosure.
His failure to provide his 2010 Income Tax Return, while serious, it should be viewed in context of his “business chaos,” and “the complexity of his financial affairs”.
The Respondent challenges some of the time spent as identified by Applicant’s counsel in their Bill of Costs.
He questions the Applicant’s counsel’s hourly rate and compares it to his calculation of what a judge’s hourly rate might be,
[ 6 ] I make no comment on the last point as the comparison is both inappropriate and likely faulty.
[ 7 ] I do question the need for two counsel on the motion.
[ 8 ] The Respondent suggests costs of $5,000.
[ 9 ] I appreciate that Ms. Chaiton-Murray is a young lawyer, who was no doubt assisting Mr. Niman perhaps prepared most of the materials and thus reduced the overall costs and attended the motion to assist and perhaps learn.
[ 10 ] The failure to make an offer is mutual in this case, but does not preclude full indemnity; it just does not trigger the consequences as provided by the Rule.
[ 11 ] The Applicant’s claim on this motion was largely related to support and she will benefit from tax deductibility. No one raised the issue. I have no way of assessing the financial impact on the applicant but considered it a factor pursuant to Rule 24.
[ 12 ] I find the Applicant is entitled to costs of $7,500 plus H.S.T. and disbursements of $550.79.
Czutrin J.
Released: January 27, 2012