SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 4531/12

DATE: 2013/08/23

RE: GEORGE ALAN HESKETH, Applicant

AND:

KATHRYN BARBARA BROOKER, Respondent

BEFORE: Turnbull, J.

COUNSEL:
Patricia Lucas, Counsel, for the Applicant

Robert Stewart, Counsel, for the Respondent

Costs ENDORSEMENT

[1] The applicant brought a motion to vary the Divorce Order of Mr. Justice Heeney dated September 26, 2005. He sought to terminate spousal support payable to the Respondent.

[2] The court heard viva voce evidence from the parties and received oral submissions from counsel. I released written reasons dated February 19, 2013 dismissing the applicant’s motion. I reserved the issue of costs pending receipt of written submissions from counsel and the last of the submissions were received in my office on April 19^th, 2013, according to a schedule amended by counsel with the concurrence of the court. I have been delayed in issuing this endorsement due to surgery I underwent in June and apologize to the parties and to counsel for my delay.

[3] The applicant agrees that the respondent was substantially successful on this motion and that she should be entitled to her costs but at an amount substantially less than that claimed by her.

[4] Mr. Stewart, counsel for the applicant, has provided detailed dockets of the time spent by him on this matter and the nature of the services rendered. His billing rate is $300 per hour and for an experienced counsel like him, I find that rate to be eminently reasonable. He was called to the bar in 1998 and practices primarily in the area of family law.

[5] His client seeks the total of $12,151.98 inclusive of disbursements and HST. This is calculated on a partial indemnity basis up to September 25, 2013 when his client served an Offer to Settle agreeing to dismissal of the motion without costs. Thereafter, his client seeks her costs on a full indemnity basis. Apparently that Offer to Settle was contained in the respondent’s settlement conference brief and technically did not comply with Rule 18(14). I find that if there was a technical non-compliance with the Rules with respect to this Offer to Settle, the respondent’s position was consistent throughout the proceedings. And at the end of the day, she was very substantially successful.

[6] Rule 24(10) of the Family Law Rules specifies that “promptly after each step in the case, the Judge…… shall decide who…… is entitled to costs and set the amount of the costs”.

[7] The issue of costs of the motions brought by the parties should have been determined by the presiding judge at the time the motions were considered. A motions judge is alert to the fact that a decision must be rendered and costs follow the event in the usual motion. Unless ordered by the motions judge, I will not award costs of those motions to the respondent. In fact, Justice Lococo did make one order requiring the respondent to pay costs of $750 to the applicant and it has not yet been paid.

[8] I find the situation to be different from that involving a Case or Settlement Conference where the judge is trying to get the parties together to resolve their differences. He or she may decide not to “add fuel to the fire” by awarding one party or the other costs at a conference. After the Case Conference and after the Settlement Conference, it appears that neither party made any submissions to the presiding judges on the issue of costs. In the usual course, this court would not award costs of such proceedings. However, the positions of the parties were clear from the outset in this matter. The respondent would not consent to a reduction in the amount of spousal support awarded by Heeney J. The applicant was determined to get a reduction, if not a full termination of support payable. In order to get this matter to a hearing, the respondent had to retain counsel and participate in those mandatory proceedings. Rule 24 does not eliminate the discretion of a trial judge to award costs for conferences but it should be the exception rather than the rule. I find this case is an exception because there was one central issue before the court and it necessitated a hearing on the merits. I do not see that the principle of indemnity for a successful party should be diminished in a case such as this. If that were the case, Rule 24(10) could easily have been crafted to provide that after the particular step in the proceeding, no costs could thereafter be awarded with respect to that step.

[9] I agree with Ms. Lucas that the issue of a review date was not considered by the respondent in her offer to settle. However, that was not a significant factor in this litigation nor in the ultimate result.

[10] I have considered the factors enumerated in Rule 24(11) in assessing costs in this matter. The issues were of importance to the parties but not necessarily complex. Each party has acted reasonably in this matter and the actual hearing of evidence and submissions by counsel were appropriate and well prepared. As noted, the rates claimed on a full indemnity basis by Mr. Stewart are not excessive and are in my view very reasonable. The time spent on this matter by Mr. Stewart, particularly in preparing for trial of the motion, were minimal. I have no doubt that this was due to the preparation he would have had to undertake from the outset of the case and as he prepared for the Case Conference and for the Settlement Conference.

[11] I have reviewed his dockets and the amounts claimed and find them reasonable. I award the respondent her costs on a substantial indemnity basis which I have rounded to $6,000 plus H.S.T. to allow for the preparation for trial which is necessarily included from the very outset of the retainer, the preparation for and attendance at the settlement conference and the case conference, the costs of trial, the costs of costs submissions and the numerous phone calls or other tasks not always picked up in dockets. I find such costs to be within the reasonable expectations of the applicant for I have no doubt that his legal bill exceeded that amount.

[12] The sum of $750.00 shall be deducted from the respondent’s award of costs if the costs ordered to be paid by her by Lococo J. have not been paid at the date of this ruling.

[13] I allow the respondent disbursements for the traveling costs of 3 trips to and from Welland by her solicitor, who practices in Tillsonburg. That distance is 133 kilometers which at 50 cents per kilometer amounts to $400.00 travelling costs.

[14] I am unable to understand what the filing fees claimed by the respondent are made up of and why an agent could not have been retained to do those filings. If Mr. Stewart can provide that information to Ms. Lucas, I trust that counsel can work this out. If not, Mr. Stewart is granted leave to send me a brief written explanation of what is claimed and why on or before September 20^th, 2013. Otherwise, I shall consider the matter finalized.

Conclusion:

[15] It is ordered that the applicant shall pay to the respondent the sum of $6,780 inclusive of HST plus disbursements of $400.00.

[16] It is ordered that any further submissions from counsel for the respondent with respect to disbursements incurred shall be provided to the court with a copy to Ms. Lucas on or before September 20, 2013. Supporting invoices shall be provided.

Turnbull, J.

Date: August 23, 2013