ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 539/11
DATE: 2012/12/12
BETWEE N:
CHRISTOPHER ALLAN HORTON WINTERBOTTOM
Marc DiGirolamo, for the Applicant
Applicant
- and -
BRIANNE ALEXANDRA LIS
Luigi De Lisio, for the Respondents
Respondent
THE HONOURABLE MADAM JUSTICE L.M. WALTERS
COSTS ENDORSEMENT
[ 1 ] On October 18, 2012, I ordered that the parties share joint custody of their son, Gage, and refused the respondent’s request to move with the child to Kingston, Ontario. I invited counsel to agree on costs and, if that proved impossible, I ordered written submissions to be filed within 30 days. I have now had the opportunity to review those submissions.
[ 2 ] The real issue at trial was the respondent’s desire to relocate to the city of Kingston. Although both parties sought sole custody of their son, it was clear by the conclusion of trial that they were prepared to continue with a joint parenting arrangement. In fact, the offers to settle by both parties included a provision for shared custody.
[ 3 ] Each party asks that they be awarded partial indemnity costs based on their view of success at trial.
[ 4 ] Rule 24 of the Family Law Rules creates a presumption that a successful party is entitled to his or her costs, except in certain specific cases. Rule 24 (11) sets out the factors the court is to consider in determining an appropriate cost award.
[ 5 ] As I indicated at the outset, the real issue at trial was the respondent's right to relocate to the city of Kingston. In this regard, she was unsuccessful. The balance of my order reflects a shared degree of success between both parties. After considering those factors set out in Rule 24 along with the provisions of section 131 (1) of the Courts of Justice Act , I am satisfied that the applicant is entitled to some costs of the trial.
[ 6 ] I note however in reviewing counsel’s draft bill of costs that he has included time spent on other steps taken in the case where no order was made as to costs. The Court of Appeal in Islam v. Rahman, 2007 ONCA 622 made it very clear that costs must be awarded at each stage of the proceeding.
[ 7 ] On a partial indemnity basis, the applicant’s costs shall be fixed in the amount of $10,000 inclusive of HST and disbursements. In addition, the respondent is obliged to comply with the cost order of Justice Scott ordered on August 9, 2012.
Walters J.
Released: December 12, 2012
COURT FILE NO.: 539/11
DATE: 2012/12/12
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: CHRISTOPHER ALLAN HORTON WINTERBOTTOM Applicant - and - BRIANNE ALEXANDRA LIS Respondent COSTS ENDORSEMENT Walters J.
Released: December 12, 2012