BARRIE

COURT FILE NO.: FC-12-458-00

DATE: 20130814

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEAH BAYE, Applicant

AND:

PHILLIP CANNING, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
R.I. Robertson, Counsel for the Applicants

Respondent Self-Represented

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The respondent, Phillip Canning (Mr. Canning), brought a motion to vary a child support order dated April 14, 1999. The applicant, Leah Baye, (Ms. Baye), opposed the relief sought. This motion proceeded by way of a half day trial. Both parties gave evidence. For reasons issued May 31, 2013, Mr. Canning’s motion was dismissed and the parties were invited to make costs submissions if no agreement had been reached. Ms. Baye, who was represented by counsel throughout the proceedings, submits that as the successful party, she is entitled to costs on a partial indemnity basis. The costs claimed for fees, disbursements and HST are $14,684.35. Mr. Canning was self-represented at trial and submits that each party should bear their own costs.

[2] Rule 24 of the Family Law Rules provides guidance to the court and the parties with respect to costs. Rule 24(1) provides, “There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.” However, para. 24(10) further provides:

Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[3] In family law matters, the Court of Appeal has provided overarching comments with respect to costs. In Serra v. Serra, 2009 ONCA 395, 2009 O.J. No. 1905, Epstein J.A. provided at para. 8:

Modern costs rules are designed to foster three fundamental purposes:

(i) to partially indemnify successful litigants for the costs of the litigation;

(ii) to encourage settlement; and

(iii) to discourage and sanction inappropriate behaviour by litigants.

[4] As the successful party, Ms. Baye is presumptively entitled to costs on a partial indemnity basis. However, the Bill of Costs submitted bears close scrutiny. It includes costs for attendance at a Settlement Conference and before a Disputes Resolution Officer. There is nothing in the material before me to indicate that costs from those proceedings were reserved to the trial judge. It is important that costs be dealt with at each step of the proceedings. There being no costs reserved, I would reduce the costs sought for those proceedings accordingly.

[5] When these proceedings were first brought by Ms. Baye in 1999, she resided in Simcoe County and used local counsel. Sometime thereafter, she relocated to Elmwood, Ontario, and for these proceedings retained counsel in her vicinity. Part of the Bill of Costs includes travel time and mileage to travel to the Court House in Barrie for four proceedings: Settlement Conference, DRO Conference, Trial Management Conference, and Trial. These costs for travel time and mileage total approximately $3,500. A party is entitled to retain counsel of their choice, however, unless there is evidence demonstrating that local counsel is not available, it would exceed the expectation of the other party to expect to be responsible for such additional costs. I would therefore make further reductions to the costs requested.

[6] This matter proceeded as a half-day trial and was preceded by a Trial Management Conference. Mr. Canning was not well prepared, and had not completed the necessary filings ordered by the time of trial. Such conduct can often interfere with both parties’ ability to reach a settlement and otherwise extend the time required to adjudicate a case on its merits.

[7] With these considerations in mind, having considered the costs submissions of both parties, I am satisfied that Ms. Baye is entitled to a costs award of $6,500 all inclusive. Costs are payable by Mr. Canning within thirty days of the release of this endorsement.

MULLIGAN J.

Date: August 14, 2013