NEWMARKET

COURT FILE NO.: FC-13-43245-00

DATE: 20140728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JANET BETH BOTHAM

Applicant

– and –

KENT ARTHUR BOTHAM

Respondent

Jaret N. Moldaver, for the Applicant

Joel Miller, for the Respondent

HEARD: by written submissions

REASONS FOR DECISION RE COSTS

DOUGLAS J.

[1] These are my Reasons for Decision on the issue of costs arising from a motion argued before me on April 9, 2014 and my Reasons for Decision on the substantive issues dated June 16, 2014.

[2] Rule 24 of the Family Law Rules sets out the factors to consider in setting the amount of costs. These factors, and their application to the case at hand, are as follows:

(a) The importance, complexity or difficulty of the issues

[3] The applicant submits that the motion was complex, involving competing and controversial jurisdiction and legal issues in addition to factual disagreements which required the careful and extensive and preparation of affidavit material. The Respondent argues in part that the legal issues were largely developed by the court in the Reasons for Decision, and not by the Applicant in her submissions on the substantive issues.

[4] In my view, the issues raised on the motion were of moderate complexity and the fact that the arguments developed by the Applicant on the substantive issues were not adopted substantially in the ultimate Reasons for Decision does bear consideration in determining an appropriate amount of support.

(b) The reasonableness or unreasonableness of each party’s behaviour in the case

[5] The Applicant submits that she has conducted herself reasonably while the Respondent has been “dilatory and obstructive in terms of providing disclosure and then completely unreasonable in terms of opposing any increase in the support amounts”. The Respondent denies the allegation of obstructive behaviour regarding disclosure.

[6] On the evidence before me, I am not prepared to conclude that the Respondent was obstructive regarding disclosure; however, it is appropriate under this heading to consider the relative success of the parties’ respective positions. The Applicant sought base Guidelines support for three children and secured same for two. She sought spousal support of $10,489 per month and was awarded that amount. She sought an advance on retroactive spousal and child support and was unsuccessful. She sought interim fees and disbursements in the amount of $50,000 and received $25,000. She sought an order for disclosure and was not successful in this regard. On balance, the Applicant was more successful upon this motion than was the Respondent and accordingly this merits consideration of an award of costs in her favour.

(c) The lawyers’ rates

[7] The lawyers’ rates set out in the parties’ respective Bills of Costs are not outside the range of reasonableness.

(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

[8] The Applicant argues that comprehensive affidavits were prepared to deal with challenging factual issues and much time was spent on the law giving the complexity of the issues. The Respondent argues that the Applicant’s Offer to Settle was served late in the day the afternoon before argument of the motion and the terms of the Offer fall short of the relief granted by the court.

[9] This is not a significant consideration on the issue of costs in the circumstances of this motion.

(e) Expenses properly paid or payable

[10] The Applicant mother submits all the disbursements set out in the Bill of Costs are reasonable. The Respondent does not take issue with the disbursements claimed.

(f) Any other relevant matter

[11] The Applicant submits that the Respondent has tried to keep the Applicant away from his disclosure and other funds so that she would not be able to pursue her rightful entitlements for herself and for the children and further that the Respondent has achieved considerable success following separation while leaving the Applicant in a very precarious financial position. The Respondent submits that the Applicant’s submissions are “false and inflammatory” and that the Applicant had annual disclosure of the Respondent’s income and chose not to act. I find on the evidence available to me on this motion that this factor is neutral.

[12] The Applicant did serve an Offer to Settle and I have reviewed same by way of a comparison to my decision. In my view the Offer to Settle does not improve upon the order that I made in my Reasons for Decision dated June 6, 2014. In any event the Offer to Settle was delivered too late to trigger any cost consequences under the Rules in this regard.

[13] The Applicant seeks costs of $9,500 inclusive of HST and disbursements (measured against total costs as set out in the Bill of Costs in the amount of $11,646 inclusive of HST and disbursements).

[14] In considering the factors outlined above I conclude that an award of costs of $5,000 plus HST is appropriate in these circumstances, payable within 30 days.

DOUGLAS J.

Released: July 28, 2014