ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 07-FL-2322-2
DATE: 20140116
BETWEEN:
Elena Inosante
Applicant
– and –
Scott Brooks
Respondent
Sandra Jones, for the Applicant
Self-represented, for the Respondent
HEARD: By written submissions
DECISION ON COSTS
R. SMITH J.
Positions of Parties
[1] The applicant, mother, successfully argued that there was no material change in circumstances to vary the sole custody Order of McNamara J. in her favour. The mother also successfully opposed Mr. Brooks’ motion to have the arrears of the child support set at zero, his motion to have ongoing child support set at zero and his claim for child support against Ms. Inosante while she had sole custody of the child. The applicant was also successful in clarifying the summer and Christmas holiday access. She was unsuccessful on her request for a police enforcement clause and was partially successful on a restraining order preventing the father from engaging in conversation with her while she was working at the Loblaws Store.
[2] Mr. Brooks submits that even though no change was ordered to McNamara J.’s Order, he was substantially successful on the motion and should be awarded costs notwithstanding this lack of success on the issues outlined in paragraph [1] above.
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] In this case, the mother was substantially successful in opposing the father’s motion to vary McNamara J.’s Order to alternating weeks on access.
Complexity and Importance
[5] The matter was of normal complexity for a family law matter and was important to the parties.
Scale of Costs and Offers to Settle
[6] It appears that neither party made offers to settle before the motion which they exceeded and as a result, costs will be awarded on a partial indemnity basis.
Hourly rates, Time Spent and Proportionality
[7] The applicant claims costs and disbursements in the amount of $7,782.31. The amount claimed appears to be on a full indemnity basis. Partial indemnity costs would be approximately 60% of the amount claimed. The hourly rates claimed are reasonable after adjusting the rates for the partial indemnity costs.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[8] It is difficult to assess the amount that Mr. Brooks would reasonably expect to pay as he is a self-represented party. However, he was aware that the applicant was represented by Counsel and that he brought a complex motion involving a number of requests for relief as did the mother on her cross-motion. I find he would reasonably have expected to pay costs in the range of $3,500 to $5,000 for a motion and cross-motion involving several issues.
Disposition
[9] Having considered the above factors the respondent, Scott Brooks, is ordered to pay costs to the applicant fixed in the amount of $3,500 plus HST. The amount of costs may be collected as child support.
Mr. Justice Robert J. Smith
Released: January 16, 2014
COURT FILE NO.: 07-FL-2322-2
DATE: 20140116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elena Inosante
Applicant
– and –
Scott Brooks
Respondent
Decision on Costs
R. Smith J.
Released: January 16, 2014