SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D13627/11
DATE: 2013-11-26

RE: JEAN DIAB, Applicant

AND:

CHRISTINE CLARE CARTWRIGHT, Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Lisa Kadoory, Counsel, for the Applicant

Lloyd St. Amand, Counsel, for the Respondent

Erik Grinbergs, Counsel for the Office of the Children’s Lawyer

Cost ENDORSEMENT

[1] The parties have delivered their written costs submissions as directed in my Endorsement released September 9, 2013.

[2] The following is my disposition with respect to the costs of the motions.

Positions of the Parties

[3] The Respondent submits that costs should be awarded to it on the basis that she was successful with respect to the major issue for determination on the motions, namely, whether a Section 30 assessment should be ordered. She further argues that the Applicant’s intransigence in not agreeing to the completion of a Section 30 assessment, and in not accepting the maintenance of the status quo respecting the parenting arrangements for the youngest child Hakuin, necessitated the motions and all the work and expense associated with them.

[4] The Respondent seeks full indemnity costs in the sum of fees in the sum of $14,565.00 plus HST totalling $16,458.45.

[5] The Applicant submits that each party should bear their own costs as there was divided and equal success. In particular, the Applicant states that, although the Respondent was successful with respect to whether a Section 30 assessment should be ordered, the Applicant's concern respecting delay was vindicated by the direction that it be completed within five months. The Applicant further submits that, although the Respondent succeeded on the issue respecting the parenting arrangements for Hakuin, the Applicant was successful with respect to his proposed change to the parenting arrangements for the two older children Chirho and Sophi. Moreover, the relief sought by the Respondent with respect to the care and control of the children’s passports was dismissed.

[6] The Applicant makes the point that there were no Offers to Settle exchanged between the parties that met the formal requirements of Rule 18 of the Family Court Rules and accordingly, it cannot be concluded that the Respondent obtained a result that was as favorable or more favorable than any Offer to Settle made by her.

Guiding Principles

[7] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter.

[8] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes an offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled to costs to the date that the offer was served and full recovery costs from that date. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[9] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4 , citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 SCJ). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

Analysis

[10] Taking into account all of the issues on the motions, in my view, the question of whether a Section 30 assessment should be ordered dominated the proceeding, both with respect to the written materials and oral argument. Had it not been for the position assumed by the Applicant on that fundamental issue, the remaining issues respecting the parenting arrangements for the children would or should have been very readily resolved without the need for the parties to engage in very time-consuming and expensive litigation. In particular, had the Applicant acknowledged the advisability of obtaining a Section 30 assessment in the best interests of the children and restricted his arguments to the timeframe for its completion and the sharing of the costs of the assessment, the proceeding could have been dealt with much more quickly and at far less expense to both parties. It may very well be that the assessment would be completed by now.

[11] As the successful party, the Respondent is presumptively entitled to recover costs. However, the Respondent’s cost recovery should be mitigated by a number of factors, namely:

(a) the Applicant was successful on the issue respecting the parenting arrangements for the two older children;

(b) a good deal of the affidavit material which the Respondent introduced from third parties was ruled to be inadmissible, and in any event, of very little weight;

(c) the Respondent advanced a claim in her Notice of Motion respecting the care and control of the children’s' passports which was not pursued in argument; and

(d) the Respondent did not evidence a willingness to bear half of the costs of the Section 30 assessment until oral submissions.

[12] The Applicant did not, in his submissions on costs, take issue with the time spent or the hourly rate indicated on the Respondent's Bill of Costs and did not submit his own Bill of Costs for comparison purposes in order to gauge what his reasonable expectations may have been respecting the quantum of costs.

[13] In the exercise of my discretion respecting costs, I would fix the Respondent’s costs on a partial indemnity basis, being 60% of her claimed costs ($9,875.07) and further reduce that amount by 20%, to take into consideration the factors set forth above, to $7,900.

Disposition

[14] For the reasons set forth above it is ordered that the Applicant pay costs to the Respondent in respect of the motions, fixed in the amount of $7,900 inclusive of fees, disbursements and HST. This amount is to be paid within 30 days hereof.

D. A. Broad J.

Date: November 26, 2013