NEWMARKET COURT FILE NO.: FC-08-030774-00
DATE: 20140728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY CECIL GRAHAM
Applicant
– and –
BRIGITTE WONG GRAHAM
Respondent
Martin J. Prost, for the Applicant
Helen M. McCullough, for the Respondent
HEARD: by written submissions
REASONS FOR DECISION RE COSTS
and CARE AND CONTROL OF CHILDREN
DOUGLAS J.
[1] These are my reasons for decision on the issue of costs following my judgment following trial released June 6, 2014.
[2] Rule 24(11) of the Family Law Rules requires that in setting the amount of costs the court consider the following:
(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 or party or witness, 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.
[3] This proceeding was not especially complex though the issues were of considerable importance to the parties.
[4] The lawyers’ rates reflected in the parties’ respective Bills of Costs are not unreasonable.
[5] The time spent on a case again, as set out in the parties’ respective Bills of Costs, is not excessive.
[6] The reasonableness or unreasonableness of the parties’ behaviour in this case can be assessed in light of Offers to Settle that went unaccepted. In this regard the Applicant relies upon a severable Offer to Settle dated April 25, 2014 which essentially matched my judgment on the issue of care and control of the children and as this issue absorbed most of the effort at trial, significant costs ought to follow in favour of the Applicant.
[7] The Applicant further seeks costs reflecting the following:
(a) Costs of the attendance at trial on the first day being May 20, 2014 when the parties were called for trial and the Respondent failed to attend. Applicant seeks substantial indemnity costs of $1,400 plus HST of $182;
(b) reimbursement for one-half of the assessment account of Dr. McMaster in the sum of $2,340;
(c) costs ordered by Justice Gilmore on March 25, 2009 which remain unpaid in the amount of $750; and
(d) full reimbursement of the account of Dr. McMaster for her attendance at trial in the amount of $578.14.
[8] The costs of trial sought by the Applicant on a partial indemnity basis pursuant to his Bill of Costs amount to $13,257.26 inclusive of disbursements and HST.
[9] The Respondent submits that she was overall more successful than the Applicant, that she provided an Offer to Settle which was substantially in line with the final result at trial, that the Respondent’s non-attendance on the first day of trial was due to the suddenness of the matter being put on the list for the afternoon of that day, that Dr. McMaster’s assessment costs ought to be apportioned proportionately to the parties’ incomes, that Dr. McMaster’s attendance at trial was of little value given the stale recommendations contained in her report.
[10] I have reviewed the Offer to Settle of the Respondent and it is extremely imprecise; for example, it does not define to whom custody was to be awarded; it does not specify an amount of child support nor a date for commencement of retroactivity; it does not specify a quantum of spousal support nor a date of commencement of retroactivity. In this instance the Offer to Settle is unhelpful to the Respondent’s position on the issue of costs.
[11] In terms of relative success at trial, the Applicant was successful on the issue of care and control of the children while the Respondent was successful on the issue of spousal support.
[12] On balance, given the expenditure of time at trial on issues of custody and access, and the history of these proceedings, the Applicant has been more successful. In addition, the Applicant should be entitled to some costs, though not the amount claimed, for the wasted appearance on May 20, 2014 given that the parties, when matters are called for trial, are expected to attend and to be ready to attend on very short notice. An explanation for the Respondent’s failure to be available that date has never been provided. There is also no reason why the Respondent should not be required to contribute to the costs of Dr. McMaster’s 2009 report. She should also be required to pay the $750 ordered by Justice Gilmore on March 25, 2009. Further, given the Applicant’s success on the issue of care and control, the Respondent should be required to contribute to Dr. McMaster’s costs of attending trial.
[13] I will temper the Applicant’s claim for costs to reflect the Respondent’s relative success on the issue of spousal support and quantification of her income for support purposes.
[14] In all the circumstances, I assess costs in favour of the Applicant fixed in the amount of $12,500 plus HST. This amount may be set off against the lump sum award of retroactive support in the amount of $31,322.
SUPPLEMENTARY REASONS RE CARE AND CONTROL OF CHILDREN
[15] Through inadvertence my Reasons for Decision dated June 6, 2014 under the “Summary and Conclusion” section did not include my decision on the issue of care and control of the children.
[16] The Applicant noted this in his Cost Submissions which were served upon the Respondent and in the Respondent’s submissions there was no objection to the wording proposed by the Applicant in this regard.
[17] Therefore, my Reasons for Decision will be amended to include an additional order as follows:
(1) The children Janine May Graham born August 18, 1998 and Robert Ping Graham born August 18, 2000 shall continue to be in the joint custody of the Applicant Timothy Cecil Graham and the Respondent Brigitte Wong Graham on terms that the children shall reside with each parent in alternating weeks, with the time of exchange to be after school on a first scheduled school day of each week during school terms and each Monday at 3:30 p.m. during school vacation periods.
DOUGLAS J.
Released: July 28, 2014