ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-13-1192

DATE: 20131106

BETWEEN:

ERIKA HOWE
Applicant

– and –

TIMOTHY KEGEL
Respondent

Christopher G. Severn, for the Applicant Mother
Kristin N. Moreau, for the Respondent Father

HEARD: By way of written submissions

COSTS ENDORSEMENT

DiTOMASO J.

THE MOTIONS

[1] The applicant mother was successful in obtaining an order granting leave to appeal the order of McCarthy J. dated September 19, 2013. In addition, she was successful in obtaining an order granting a stay of the order of McCarthy J. pending appeal. The motion of respondent father to dismiss the motion brought by applicant mother was dismissed. (see Reasons dated October 21, 2013)

[2] The parties agreed that costs would be dealt with by way of written submissions. I have received and reviewed those written submissions. Here are my reasons as to costs.

POSITIONS OF THE PARTIES

Position of the Applicant Mother

[3] The applicant mother seeks costs in the amount of $1,830.60 on a full recovery basis for preparation and attendance on the motions heard October 17, 2013. It is submitted that the applicant mother was entirely successful and should be entitled to full recovery costs.

Position of the Respondent Father

[4] While it is acknowledged that the applicant mother was entirely successful on the motions, it is submitted that the applicant mother’s costs should be awarded on a partial indemnity basis and should not exceed sum of $1,098.36, being 60% of the actual fees claimed by the applicant mother.

ANALYSIS

[5] The applicant mother was entirely successful on her motions and she is presumed to be entitled to her costs pursuant to rule 24(1) of Family Law Rules. This is acknowledged by the respondent father.

[6] No offers to settle were made in relation to this matter as the parties had polarized positions regarding custody, access and mobility of the children. The issues could not be easily negotiated and the motions needed to be heard.

[7] Both the applicant mother and respondent father agree that:

a. neither party acted in bad faith or unreasonably;

b. there was no delay in hearing the motion which impacted costs; and,

c. neither party caused any additional costs by poor conduct.

[8] The narrow issue is whether the applicant mother’s costs ought to be awarded on a full recovery or partial indemnity basis.

[9] I find that the applicant mother is entitled to costs on a partial indemnity basis. Although she is the successful party, she is not entitled to full recovery costs. It is noted by the court she relocated her residence and that of the children from Algonquin Highlands, Ontario to Barrie, Ontario without notice or warning to the respondent father. He did not consent to the children’s residence being relocated.

[10] That having been said, it has not been demonstrated by applicant mother that she is entitled to the highest level of costs. No evidence was proffered which justifies an award of full recovery costs in this case.

[11] As for quantum, I find the Bill of Costs submitted on behalf of the applicant mother to be entirely reasonable, save for the fact that it is based on full recovery.

[12] I am guided by the principles of fairness, reasonableness and proportionality in fixing costs on these motions.

[13] Having fully considered the written submissions by counsel, I fix costs in the amount of $1,200 all inclusive payable by the respondent father to applicant mother within 30 days. I find these costs to be fair, reasonable and proportional in all the circumstances.

DiTOMASO J.

Released: November 6, 2013