COURT FILE AND PARTIES
COURT FILE NO.: FC-12-176
DATE: 20130402
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: C.M.G., Applicant
AND
R.G., Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Harold Niman / Daryl Gelgoot / Vanessa Amyot, for the Applicant
Michael S. Rankin / Cheryl Goldhart / Annie Noa Kenet, for the Respondent
HEARD: By Written Submissions
ENDORSEMENT regarding costs
ENDORSEMENT
[1] The applicant seeks costs of the motion heard on January 16, 2013 on a full recovery basis in the amount of $33,539.00 or in the alternative, on a partial recovery basis in the amount of $22,136.00. The respondent submits that no costs should be awarded based on paragraph 7.3 of a Partial Interim Separation Agreement or in the alternative, that the applicant’s costs should be limited to $5,534.10.
[2] Paragraph 7.3 of the Agreement states:
C. will be responsible for all of her own legal and other professional fees related to the issues related to the breakdown of the parties’ marriage, out of the final settlement or determination by court order. ...
[3] In my view, this clause is not a waiver of the entitlement of the applicant to seek an award of costs from the court. I distinguish between “legal and professional fees” and a judicial award of costs following a contested hearing. The respondent’s interpretation would mean that the applicant but not the respondent had given up her entitlement to seek costs from the court. This is an unreasonable interpretation of paragraph 7.3.
[4] I find that the applicant was the successful party on the motion heard on January 16, 2013 and that she is entitled to costs. I also find that, based on her offer made on January 14, she is entitled to costs on a full recovery basis for the period after that date. The amount claimed of $33,539.00 represents the applicant’s view of full recovery costs both before and after making her offer. She is not entitled to that level of costs throughout.
[5] I agree with the respondent’s submission that the hourly rates of applicant’s counsel should be reduced for the purpose of determining the amount of costs to be awarded as between the parties. I also agree that there is a certain amount of duplication apparent in the Bill of Costs in terms of meetings, discussions and review of another lawyers work. It is also my view that the matters in issue as argued before me did not require the attendance of any counsel for the applicant in addition to Mr. Niman, who actually presented the case for her.
[6] Respondent’s counsel has suggested a very detailed parsing of the Bill of Costs in terms of the various issues raised between the parties, the date they were raised and the number of paragraphs devoted to the issues that were argued. I find I am unable to perform such an exact determination of the Bill of Costs. Nor do I agree that this is necessary in order for me to fix the costs of this motion. I have reviewed the Bill of Costs in detail and I have made allowances for the various factors already noted. The issue of bifurcation was a very important issue. It was highly contested. The law applicable to it was relatively complex for a procedural motion. The outcome of the bifurcation motion was also determinative of the financial disclosure to be required of the respondent. There is no doubt that disclosure is a central issue in this case. The motion itself was a “long half day” in that court sat into the lunch hour to accommodate counsel.
[7] Taking these factors into account, I fix the costs for the proximate preparation after the offer of January 14 was made and the actual argument of the motion at $11,340.00 on a full recovery basis, allowing hourly rates of $540.00 for both Mr. Niman and Mr. Gelgoot. This rate is Mr. Gelgoot’s actual full recovery rate. In my view, it is consistent with the partial rate set out in the costs grid for counsel with 20 years or more experience. In reaching this amount, I have reduced Mr. Gelgoot’s time by half on January 14 to reflect that some of that time appears to have been spent prior to the offer being extended, and on January 15 to reflect my view that he was not required to prepare for the motion argued by Mr. Niman. I assess the costs incurred prior to that date on the issues that were argued at $5,000.00 on a partial recovery basis. HST is $2,124.00. I have allowed travel disbursements for one counsel and have considered that some of the other disbursements must have been incurred in relation to the issues that were settled prior to the motion. In the result, I fix the applicant’s costs of the motion on an all-inclusive basis at $20,500.00.
J. Mackinnon J.
Date: April 2, 2013
ADDITIONAL HEADER (AS IN ORIGINAL DOCUMENT)
COURT FILE NO.: FC-12-176
DATE: 20130402
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: C.M.G., Applicant
AND
R.G., Respondent
BEFORE: J. Mackinnon J
COUNSEL: Harold Niman / Daryl Gelgoot / Vanessa Amyot, for the Applicant
Michael S. Rankin / Cheryl Goldhart / Annie Noa Kenet, for the Respondent
ENDORSEMENT regarding costs
J. Mackinnon J
Released: April 2, 2013