COURT FILE NO.: 46974-12

DATE: 2014-01-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRENDA LEE VEY-WILSON, Applicant

AND:

GARY PATRICK WILSON, Respondent

BEFORE: The Honourable D.A. Broad

COUNSEL: Lydia Moritz, for the Applicant

Sean Plat, for the Respondent

Costs ENDORSEMENT

[1] The parties delivered their costs submissions as directed in my Endorsement of November 6, 2013. I wrote to counsel on November 27, 2013 inviting the Respondent to make further submissions responding to the Applicant’s costs submissions, and the Applicant to make brief reply submissions. Those supplementary submissions have now been received. The following is my disposition with respect to costs.

Guiding Principles

[2] 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. These factors are to be applied flexibly (see C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.) at para 42).

[3] Subrule 24(10) provides that costs should be decided at each step of a proceeding, with the judge who dealt with a step in the case to decide, in a summary manner, who, if anyone, is entitled to costs, and set the amount of costs.

[4] 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 a written offer at least seven days before the trial, and obtains an order as favorable as or more favorable than the offer, is entitled, unless the Court orders otherwise, 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.

[5] 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 it was 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

[6] The parties are agreed that neither of them met their offer to settle and accordingly, subrule 18(14) has no application.

[7] The issue respecting the payment by the Respondent of an advance on equalization was resolved by agreement. The Respondent was unsuccessful in his claim for exclusive possession of the matrimonial home, and the Applicant was successful in obtaining an order, on a without prejudice basis, for child and spousal support in an aggregate amount exceeding the amount offered by the Respondent. Accordingly, the Applicant can be said to have been the successful party on the motions.

[8] The Respondent argues that, since child and spousal support was ordered to be paid by him on a without prejudice basis, the parties should each bear their own costs or alternatively, the costs should be reserved to the judge who ultimately disposes of the matter.

[9] In my view, this position does not accord with subrule 24(10) which directs that the costs should be decided that each step in a case. I am not satisfied that the fact that the support award was on a without prejudice basis justifies deviation from this direction in the present circumstances.

[10] There was no conduct on the part of the Respondent that which would support an award of elevated costs against him. The Applicant is therefore entitled to costs of the motions on a partial indemnity basis.

[11] The Applicant’s claim for costs on a partial indemnity basis is the total amount of $7,477.49 comprised of $6,249.15 in respect of fees, disbursements in the sum of $613.50, plus HST on the fees and taxable disbursements for a total of $7,754.80.

[12] The fee claim is based on a partial indemnity rate of $237 per hour for counsel's time and a law clerk's time at $75 per hour. In my view, a partial indemnity rate of $180 per hour would be considered to be appropriate for motions of this nature in the present circumstances. I would allow the full preparation time of 16 hours for Applicant's counsel, however I would not allow the travel time of 2.9 hours. Although the Applicant is fully entitled to retain out of town counsel, the cost of the time for counsel to travel to Kitchener to argue the motions should not be visited upon the Respondent. Although counsel was required to be in attendance throughout the day, commencing at 10:00 a.m. on a regular motions day, the costs of the entire attendance waiting to be heard should not be a fully recoverable on a partial indemnity basis in the present case. I would allow four hours for the attendance on the motions.

Disposition

[13] I would therefore allow $3,715 in respect of fees, HST thereon in the sum of $482.95, $537.50 in respect of disbursements (excluding the mileage claim) and HST on the taxable disbursements of $20.48 for a total of $4,755.93. The Respondent shall pay at this amount to the Applicant within 30 days hereof.

D.A. Broad, J.

Date: January 8, 2014