SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 07-FL-2129-2
DATE: 20140317
RE: Marco Guadalaxara, Applicant
AND
Ashley Viau, Respondent
BEFORE: Mr. Justice Robert Smith
COUNSEL:
Self-represented, for the Applicant
Annemarie Roodal, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
Positions
[1] The successful respondent seeks costs of $8,613.93 on a rate at an hourly rate for a family law lawyer with 11 years experience at the rate of $200.00 per hour, even though she is in receipt of legal aid.
[2] The applicant submits that success was divided and that no costs should be apportioned between the parties.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules 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
[4] In this case the respondent mother was successful as the access was not changed to a 50/50 basis as sought by the applicant father. The applicant was granted increased access on consent from Friday after school to Monday at school.
[5] The mother also initially brought a motion to have the respondent is access supervised due to showering with the child but this motion was abandoned after the CAS investigated and had no child protection concerns.
Hourly Rates and the Offer to Settle
[6] The respondent mother offered to settle on terms that were exceeded after the motion was decided. As a result she seeks costs based on her 11 years of experience at the rate of $200.00 per hour.
[7] I agree with the respondent’s submission and the decision of Wein J. in Ramcharitar v. Ramcharitar 2002 53246 (ON SC), [2002] 62 O.R. (3d) 107 that pursuant to s. 46 of the Legal Aid Services Act, 1998, S.O. c.26, costs of a legally aided person are not to be based on the indemnity principal. The costs are to be assessed without regard to the fact that the client is legally aided.
[8] The Notice to Profession states that lawyers with more than 10 years of experience can be awarded partial indemnity costs of up to $300.00 per hour. Ms. Roodal has been practicing law for 11 years. She seeks a rate of $200.00 per hour. I find that the hourly rate sought is reasonable in the circumstances as this was not the most complicated of cases.
[9] However, Ms. Roodal did excellent work on behalf of her client and persuaded me to make an order for access to the applicant father different then recommended by the assessment, but followed the recommendations of the report of the Office of the Children’s Lawyer.
[10] The applicant was partially successful as he was awarded expanded access.
[11] I also found that the respondent behaved unreasonably by filming the children during access exchanges and by remaining in front of the respondent’s home during access pick-ups at the mother’s home to discuss with the child for several minutes.
[12] I find that the losing party on a strongly contested custody and access motion, where both an assessment and an OCL report were filed would reasonably expect to pay approximately $5,000.00 in legal costs.
Deposition
[13] Having considered the above factors, the time spent, hourly rates, and what the unsuccessful party would reasonably expect to pay and some limited success by the applicant, I order the applicant to pay the respondent costs of $4,000.00 plus HST plus disbursements of $122.95.
The Hon. Mr. Justice R. Smith
Date: March 17, 2014
COURT FILE NO.: 07-FL-2129-2
DATE: 20140317
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Marco Guadalaxara, Applicant
AND
Ashley Viau, Respondent
BEFORE: Mr. Justice Robert Smith
COUNSEL: Self-represented, for the Applicant
Annemarie Roodal, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
R. Smith J.
Released: March 17, 2014