SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
COURT FILE NO.: FD1184/11
DATE: February 7, 2013
RE: Alison Darlene Carr, applicant
AND:
Karl-Ludwig Wilhelm Ossenkopp, respondent
BEFORE: HENDERSON J.
COUNSEL:
Beth Leaper for the applicant
Karl-Ludwig Wilhelm Ossenkopp in person
HEARD: written submissions filed
ENDORSEMENT ON COSTS
[1] Following the receipt of submissions, I asked the parties these questions:
In the resolution of all other issues, besides the issue that went to trial, were costs addressed?
Were costs awarded in any other steps of the proceeding that are being included in the applicant’s claim for costs?
Is the applicant claiming costs only in respect of the support issue that went to trial?
[2] Only counsel for the applicant responded and her response was as follows:
Costs were addressed with respect to the motion argued before the Honourable Madame Justice Morissette in August, 2011 (no costs ordered, divided success). Other than this, costs were not addressed at any other step in the process.
Costs were not awarded in any other steps of the proceeding that are included in the Applicant’s claim for costs.
Yes, the Applicant is claiming costs only in support of the support issues that went to trial. Full costs of pleadings, trial and preparation etc. were $18,463.07. Up until just before the trial, the issues of custody and access were live issues and the settlement conference, offers etc. dealt with all outstanding issues, which makes it difficult to determine precisely how much time should be allotted to the support issues. Once actual trial preparation commenced, the costs claimed are strictly limited to support issues.
[3] The respondent concedes that the applicant was more successful than he at trial. Pursuant to r. 24(1), the applicant is therefore presumptively entitled to her costs. The respondent takes issue with the quantum of costs claimed by the applicant, which he believes to be excessive. The applicant is seeking costs in the amount of $12,000 inclusive of fees, disbursements and HST.
[4] Rule 24(11) of the Family Law Rules, O. Reg. 114/99 sets out factors that the court must consider when determining costs:
24(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[5] The child support issue was important to both parties but especially so because it involved the imputation of income. This also made the matter of modest complexity. The reasonableness of either party’s behaviour does not bear on the determination of costs.
[6] I find the lawyer’s rates reasonable in view of her 20 years of experience.
[7] The applicant is only claiming for approximately two-thirds of the total expenditure of time, none of which I find unreasonable.
[8] Both parties made offers to settle. The last offer of the applicant was more favourable than what she obtained by order. Although it did not meet the technical requirements of r. 18(14) because it was short served, I may still take it into consideration under r. 18(16), which allows the court to take into account any offer to settle made.
[9] Taking into account all of the above considerations, I order the respondent to pay to the applicant her costs in the amount of $12,000 inclusive of fees, disbursements and HST within 90 days.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: February 7, 2013