ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: FC-13-359-1
DATE: 2014/03/24
BETWEEN:
DENISE GILBY
Applicant
– and –
LIONEL GODDARD
Respondent
Self‑represented
Sarah Kennedy, counsel for the Respondent
HEARD: By Written Submissions
dECISION as to costs
PARFETT J.
[1] The parties have been unable to agree on costs and the matter has been submitted to me for determination. Pursuant to Rule 24(1) of the Family Law Rules, there is a presumption that the successful party is entitled to the costs of the motion. In this case, success was divided although the Respondent was more successful than the Applicant and that fact will be taken into consideration.
[2] Offers to settle were made by the parties and I have reviewed all of them. The Applicant made an offer to settle on September 30, 2013, which was rejected by the Respondent. That offer reflected much of what the Applicant was seeking. Ultimately, she was successful at the motion only on the issue of joint custody and the termination of spousal support. I note that, at the motion, the Respondent conceded the issue of spousal support.
[3] The Respondent made an offer on November 8, 2013. Again, this offer reflected much of what he was seeking. Ultimately the Respondent did slightly better after the motion than he would have, had the offer been accepted. The only area where he did worse was on the issue of final decision‑making power with respect to daycare, where the Court found that issue should remain the joint responsibility of the parties. The only area where he did better was on the issue of child support. Otherwise, the Respondent achieved precisely what he offered. Consequently, my decision, while in some respects a more favourable result than the offers is, in other respects, not as favourable. Rule 18(14) of the Family Law Rules therefore does not apply in this case.
[4] The factors that I am required to consider on the issue of costs are found at Rule 24(11) of the Family Law Rules and they are as follows:
a) The importance, complexity or difficulty of the issues;
b) The reasonableness or unreasonableness of each party’s behaviour in the case;
c) The lawyer’s rates;
d) The time properly spent on the case, including conversation between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
e) Expenses properly paid or payable; and
f) Any other relevant matter.
[5] This matter was of moderate complexity primarily as a result of the need to calculate the Respondent’s income. Two experts prepared reports: one for the Applicant and in response to that report, the other for the Respondent. The cost of those reports is a significant factor in the assessment of costs. The Respondent’s expert has invoiced $12,430, inclusive of disbursements and HST. This report was necessary as the Applicant’s expert’s report had concluded that the Respondent was earning substantially more than the Court ultimately concluded he was earning and that fact had a significant impact on the calculation of child support. In my view, the Applicant should pay the full cost of that report.
[6] On the other hand, the remainder of the issues were not particularly complex. The Respondent’s legal fees for the entire file, including the fees for the previous lawyer, amount to $21, 830. In my view, that amount is excessive particularly given that the change in lawyers resulted in a certain duplication of costs to get the second lawyer up to speed. The Applicant should not have to bear the cost of the Respondent’s decision to change lawyers. Consequently, there will be a discount to reflect that fact.
[7] Finally, I am in agreement that the Respondent should receive costs on a substantial indemnity basis after the date of the Offer to Settle. That amount is $4840.
[8] I have reviewed the Respondent’s Bill of Costs and I note that the Court is not required to simply accept the bill as presented. Although I am not second guessing the work of counsel, it appeared that some of the time spent in preparation for the motion was somewhat high and went beyond what is a fair and reasonable amount that the losing party should pay (see Zesta Engineering Ltd. v. Cloutier, 2002 25577).
[9] The Applicant argues that costs in the amount of $3,000-5,000 would be appropriate. However, that amount does not adequately reflect the cost of the expert and the cost of disbursements. Consequently, I fix the costs payable by the Applicant at $18, 075, inclusive of HST. That amount consists of the cost of the expert ($12,430), partial indemnity legal fees (9,000÷2 = 4,500 + HST = $5,085), and disbursements ($560).
Madam Justice Julianne A. Parfett
Released: March 24, 2014
OTTAWA COURT FILE NO.: FC-13-359-1
DATE: 2014/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENISE GILBY
Applicant
– and –
LIONEL GODDARD
Respondent
DECISION AS TO COSTS
Parfett J.
Released: March 24, 2014