COURT FILE NO.: FC-96-143-1
DATE: 2014/04/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Romain
Applicant
– and –
Andre Laframboise
Respondent
Susan E. Galarneau, for the Applicant
Rod A. Vanier, for the Respondent
HEARD: By written submissions
DECISION ON COSTS
R. Smith J.
Positions of Parties
[1] The applicant mother seeks costs on a substantial indemnity basis of $10,000.00, as she was substantially successful on her motion for arrears of child support and spousal expenses.
[2] The respondent father submits that while the applicant mother was substantially successful he was successful on a number of issues and therefore success was divided and he proposes to pay $1,500.00 in costs.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 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] I find that the applicant was substantially successful on the motion but the respondent was successful on a number of issues.
Scale of Costs and Offers to Settle
[5] The applicant offered to settle the issue of arrears of child support in her letter of October 3, 2013. She proposed to limit her claim for arrears of child support to three years. She obtained a more successful result at the motion.
[6] The offer to settle also contained terms related to sharing the expenses of post-secondary education, where circumstances had changed. As a result, the applicant did not exceed all of the terms of her offer after the motion. While, I find it was a reasonable offer, it does not attract full indemnity costs.
[7] The respondent was very reluctant to provide financial disclosure, but the applicant also did not disclose that Mathieu was no longer in school until the hearing of the motion.
Hourly rates, Time Spent and Proportionality
[8] The respondent does not dispute the reasonableness of applicant’s counsel’s hourly rate or the time spent. I agree that the hourly rate is reasonable and the time spent is also reasonable and proportionate to the issues.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[9] The respondent submits that he has already been billed for $6,358.00 and therefore should not be ordered to pay a substantial costs order in addition to this amount. I do not agree with this submission and find that this indicates that the respondent would reasonably have expected to pay $5,000.00 to $7,000.00 in costs if he was unsuccessful as he was invoiced over $6,000.00. The applicant would usually be expected to spend more time preparing the motion than the respondent.
Disposition
[10] Having considered all of the above factors, including that the applicant was substantially successful and made a reasonable offer to settle, and the reasonable expectation of the unsuccessful party, I order the respondent to pay costs of $6,000.00 inclusive of HST, plus disbursement of $610.65 inclusive of HST.
R. Smith J.
Released: April 14, 2014
COURT FILE NO.: FC-96-143-1
DATE: 2014/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wendy Romain
Applicant
– and –
Andre Laframboise
Respondent
DECISION on COSTS
R. Smith J.
Released: April 14, 2014