ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 42346-08
DATE: February 7, 2012

BETWEEN:

Mark Fretwurst Applicant – and – Jan Fretwurst Chaplin Respondent

Theodore C. Dueck, for the Applicant

David Thrasher, for the Respondent

ruling on costs

[ 1 ] In my reasons of July 21, 2011, on the motion argued May 13, 2011, I concluded that the Applicant had a measure of success and subject to any offers in that regard ought to be entitled to costs of the motion.

[ 2 ] I have been informed by the parties that there are no relevant Offers to Settle.

[ 3 ] The successful Applicant husband has submitted a Costs Outline in respect of the motion which seeks payment of $25,403.80 on a full indemnification basis. In the alternative he sets out a total of $18,336.78 for his costs claim.

[ 4 ] The Respondent wife’s position is that the Bill of Costs is excessive and that costs should only be awarded on a partial indemnity scale.

[ 5 ] Counsel for the wife argues that the cross-examination of the Applicant by him took place on March 18, 2011 and only took two hours while Mr. Dueck’s cross-examination of Ms. Chaplin consisted of cross-examination on her Financial Statement and Affidavit in opposition to the motion, combined with a continuation of questioning as to other unrelated issues. Accordingly that examination took place over two days on March 1 and 2, 2011. But Mr. Thrasher says it only should have lasted one half day.

[ 6 ] The total time logged by Mr. Dueck for the preparation for cross-examination of Ms. Chaplin and attendance at her cross-examination took 8.5 hours.

[ 7 ] Mr. Thrasher does not complain about Mr. Dueck’s rates.

[ 8 ] I would point out that Mr. Thrasher did not deliver to me as required the Respondent’s Costs Outline. He simply delivered a two page letter containing submissions.

[ 9 ] There has to be some balance and limitation of these matters in the middle of a case. This motion was about the continuation of support following the original order of Justice Whitten in that regard. What I did was to make a “weaning order” which effectively ended at the date of the argument of the motion.

[ 10 ] I remind myself that costs of the successful party ought to be reasonable and be based on the reasonable expectations of the losing side.

[ 11 ] I agree with Mr. Thrasher that there is nothing in this case that would take the rate from partial indemnification to substantial or full indemnification and I agree with him as well that at most one half day ought to have been allowed for the cross-examination of Ms. Chaplin by Mr. Dueck.

[ 12 ] Mr. Thrasher did not complain about the disbursements set out on the Bill of Costs of the winning Applicant.

[ 13 ] In my view a fair and reasonable amount for the costs of the Applicant succeeding on this motion ought to be $16,000, all inclusive. I would accordingly order that amount to be paid by the Respondent to the Applicant.

P. J. Flynn J.

Date: February 7, 2012