ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-375
DATE: 2013/10/01
BETWEEN:
Steven Galezowski
Applicant
– and –
Louise Smolska
Respondent
J. Alison Campbell, for the Applicant
E. Jane Murray, for the Respondent
HEARD: (By written submissions)
DECISION REGARDING COSTS
R. Smith J.
Overview
[1] The respondent wife seeks costs in the amount of $10,000.00 for the motions addressing the issues of summer access, school year access, interim child and spousal support, the sale of the matrimonial home, exclusive possession of the matrimonial home and renegotiation of the mortgage on the matrimonial home.
Position of Parties
[2] The respondent wife submits that she was substantially successful on this motion and cross-motion and as a result submits that she should recover her costs on a partial indemnity basis in the amount of $10,000.00.
[3] The applicant husband submits that the wife was successful on only portions of the motions. He submits that he does not have the ability to pay a costs award and that the awarding of costs should be deferred until the report of the Children’s Lawyer is received and until the Master decides the sale of the matrimonial home issue.
Factors
[4] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O.Reg. 114/99, and include that the successful party is presumed to be entitled to costs; the reasonableness of the behaviour of each party and any offer to settle; any acts of bad faith by any party; the importance, complexity or difficulty of the matter; the scale of costs, hourly rates and time spent; and the reasonable expectations of the losing party.
Success
[5] I find that the respondent wife was substantially successful in her response to the cross-motion for equal parenting, as the status quo was maintained with the exception of an extended holiday period from August 6 to 12, 2013. The status quo was also maintained for the school year access, which was the position advanced by the respondent wife. With regards to the interim child support, the applicant husband submitted that the child support should be fixed at $2,688.00 per month based on his income of $209,331.00. The respondent wife sought child support of between $2,600.00 and $3,600.00 per month. She did suggest that I find that the husband earned a higher annual salary than I ultimately found. Interim child support was awarded of $3,124.00 per month based on an annual income of $247,550.00 for the husband. The interim child support awarded was close to the midpoint of the range suggested by the wife.
[6] The respondent wife was also successful on her claim for interim spousal support, as the applicant proposed that no interim spousal support be awarded and the respondent wife sought spousal support of $3,426.00 per month. The interim spousal support was set at in the amount $1,700.00 per month, which was in the approximate mid-range of the Spousal Support Advisory Guidelines. The respondent wife was also granted interim exclusive possession of the matrimonial home until it was sold and the parties also consented to renegotiating the mortgages with the financial institution.
[7] In summary I find that the respondent wife was substantially successful on the motion and cross-motion.
Complexity and Importance
[8] The matter was of some complexity and was important to the parties.
Unreasonable Behaviour or Bad Faith
[9] The issue of the renegotiation of the mortgage should have been resolved by the parties as requested by the respondent wife at a much earlier date without requiring a motion. The applicant husband did not disclose his updated salary status until August 2, 2013, shortly before the motion. However, I find that the husband’s conduct was not so unreasonable as to justify a level of costs greater than on a partial indemnity scale.
Scale of Costs and Hourly Rates
[10] I find that the costs should be awarded on a partial indemnity scale. I also find that the hourly rate claimed by Ms. Murray of $375.00 per hour on a full indemnity basis for a lawyer with 29 years of experience, the substantial part of which is in the family law area, is reasonable. The rate for the junior lawyer of $175.00 per hour is also reasonable. The hourly rates claimed by the applicant husband’s counsel are also reasonable. The total costs claimed by the respondent wife on a full indemnity basis were $13,259.39, inclusive of disbursements of $289.32.
[11] The applicant husband has submitted his own bill of costs which total $13,490.37 inclusive of HST. This amount is very similar to the amount of costs incurred by the respondent wife.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[12] Given that the applicant husband has submitted a bill of costs for $13,490.37, I find that the unsuccessful party, in this case the applicant husband, would reasonably expect to pay the amount sought by the respondent wife.
Disposition
[13] Having considered the above factors the applicant husband is ordered to pay costs fixed in the amount of $8,500.00 plus HST, plus disbursements of $289.32 plus HST, to the respondent wife.
R. Smith J.
Released: October 1, 2013
COURT FILE NO.: FC-13-375
DATE: 2013/10/01
BETWEEN:
Steven Galezowski
Applicant
– and –
Louise Smolska
Respondent
DECISION REGARDING COSTS
R. Smith J.
Released: October 1, 2013