SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-12-76142-00
DATE: 2014-04-08
RE: Marsha Olivia Elizabeth Graham, Applicant
AND:
Mark Anthony Graham, Respondent
BEFORE: Lemon, J.
COUNSEL:
Marsha Olivia Elizabeth Graham , In Person
Mark Anthony Graham, In Person
HEARD: December 12, 2013
COSTS ENDORSEMENT
THE ISSUE
[1] On January 16, 2014, I rendered my decision with respect to this interim matter. Ms. Graham sought support based on an imputed income to Mr. Graham. Although Mr. Graham deposed that he earned no income, I imputed an income to him and ordered lump sum support to Ms. Graham of just over $26,000. Mr. Graham’s request for funds to be paid to him was dismissed. All other issues were resolved on consent.
[2] I ordered that Ms. Graham would make her costs submissions within 30 days of my January 16 endorsement, and Mr. Graham would have 30 days to reply thereafter. I have now received Ms. Graham’s submissions for costs, but Mr. Graham has not provided any responding material.
[3] Ms. Graham seeks costs in the amount of $7,652.
LEGAL PRINCIPLES
[4] The Family Law Rules provide the following with respect to an award of costs:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(11) A person setting the amount of costs shall consider,
(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 conversations 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] Costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
(See: Phuong v. Chan 1999 2052 (O.N.C.A.) 1999 46 O.R. (3d) 330.)
[6] I am also required to take into consideration what an unsuccessful party would reasonably expect to pay for such a proceeding.
[7] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.), (2004), 71 O.R. (3d) 291, at para. 24.
ANALYSIS
[8] Ms. Graham has been successful and therefore is presumptively entitled to costs. This matter was argued over two days when Mr. Graham provided late documentation at the end of a long day. Upon review, that material was found to be of no benefit. I drew an adverse inference against him for failing to produce the records that he should have. That conduct should not be encouraged.
[9] Given the importance of the issues, the materials reviewed, and the length of time necessary to argue the case, the costs requested are reasonable.
[10] In the circumstances, I order Mr. Graham to pay costs, fixed in the amount of $7,652 payable within 30 days.
Lemon, J.
Date: April 8, 2014
COURT FILE NO.: FS-12-76142-00
DATE: 2014-04-08
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Marsha Olivia Elizabeth Graham v. Mark Anthony Graham
BEFORE: Lemon, J
COUNSEL: Marsha Olivia Elizabeth Graham , In Person
Mark Anthony Graham, In Person
COSTS ENDORSEMENT
Lemon, J
Date: April 8, 2014