ONTARIO

SUPERIOR COURT OF JUSTICE

WELLAND COURT FILE NO.: D24248/13

DATE: 2014/09/23

BETWEEN:

SHARON LYNN SUMMERS

Kenneth Garland, for the Applicant

Applicant

• and -

LEONARD GORDON SUMMERS

Bruce A. Macdonald, for the Respondent

Respondent

The Honourable Madam Justice W. L. MacPherson

COSTS ENDORSEMENT

1On July 11, 2014, the court heard two motions. In the first one, the wife sought an order for spousal support in the amount of $3,320.00 per month retroactive to May 1, 2014. The wife also sought an order requiring the husband to provide a formal business valuation of Summers Farms Ltd. In the second motion, the husband requested an order that he have exclusive use and access to the bank account for Summers Acres Ltd. with only a requirement that he regularly provide disclosure of the bank account statements to the wife.

2On July 21, 2014, the court released written reasons. The order made required the husband to pay interim spousal support to the wife in the amount of $2,300.00 per month. The interim order was made without prejudice to vary the spousal support once the husband’s income was more accurately determined and to permit a re-characterization of some portion of the spousal support as a transfer of capital or an advance on an equalization payment. This was done, due to the fact that there remains an issue as to the amount of income available to the husband from the jointly owned business, Summers Acres Ltd. There was also the issue of a related corporation, Summers Farms Ltd., owned by the husband and his brother.

3On the facts before me, it was apparent that the husband continued to receive all of the benefits from both of these corporations as had been done during the marriage, whereas as a result of the separation, the wife no longer received any of the benefits. What was less clear was what dollar figure should be attributed to the benefits being received by the husband.

4An order was made to require the husband to obtain a formal business valuation of Summers Farms Ltd. The husband had been opposed to this on the basis this asset had been acquired by way of gift or inheritance and should be excluded from his net family property.

5An order was also made that both parties were to have access to the banking records of all bank accounts pertaining to Summers Acres Ltd. However, the husband was to have the right to exclusive use of any of the bank accounts with the wife being prohibited from making any withdrawals from the said account.

6Following the release of the decision, counsel had been invited to make written submissions on costs. I have now had the benefit of reviewing those submissions.

7The applicant is seeking costs on a substantial indemnity basis in the amount of $8,049.67 which is comprised of fees inclusive of HST in the amount of $7,644.45 and disbursements inclusive of HST in the amount of $405.22. The applicant submits that she was successful on the matters contained in her motion (interim spousal support and business valuation of Summers Acres Ltd.) and that there was only divided success on the respondent’s motion regarding the business bank account.

8The respondent takes the position that the issue of costs should be reserved to the justice determining the issues on a final basis as the spousal support order was made on a without prejudice basis only, and depending on the results following a trial, the issue of costs should be left to the justice that determines that.

9The issue of costs in Family Law matters is determined by Rules 18 and 24 of the Family Law Rules.

10Pursuant to Rule 24 (1) the successful party is presumed to be entitled to recover costs. Consideration of success is the starting point in determining costs.

11The main issue on the motions before me and the issue on which the most time was spent was interim spousal support. With regard to interim spousal support, the applicant was the successful party as an interim, albeit without prejudice, spousal support order was made.

12I have taken note of the fact that the applicant’s claim for interim spousal support was significantly higher based on a previous year’s financial statement that included income that was clearly no longer available to the corporation. There was no Offer to Settle included in the costs submission, but this remained the applicant’s position on the hearing of the Motion. If there had been, then the cost consequences under Rule 18 could have come into play, but without that, there is no basis for full recovery of costs to the applicant.

13Although I have considered the respondent’s counsel’s request that costs should be left to be determined by the trial judge, that is not appropriate in this case as given the financial circumstances of the parties and the position taken that no interim spousal support should be paid, the applicant had no choice but to proceed with the Motion. It is only in very unusual circumstances that the justice hearing the motion does not determine the issue of costs and no such circumstances would justify that being done here.

14However, I would note that it was not appropriate for counsel for the applicant to refer to comments made by the justice conducting the conference and I have not considered same in determining the issues of costs.

15With regard to the remaining two issues, the applicant was successful with regard to the requirement of having a business valuation done of Summers Farms Ltd. and the respondent was successful in obtaining essentially the order requested regarding the business bank account. As such there was divided success as between those two issues.

16Rule 24 (11) requires that the court consider the importance, complexity or difficulty of the issues. I have no doubt that these matters were important to both of the parties. The issue of spousal support was somewhat more complex than usual given the farming businesses and the nature of the income.

17Rule 24 (11) (b) and (c) requires that the court consider the lawyer’s hourly rate and the time properly spent on the case. I take no issue with the hourly rate of $250.00 given the years of experience of the applicant’s counsel. Having reviewed both Bills of Costs, and considering the issues there were being dealt with, the time expended by the applicant’s counsel in excess of 20 hours would appear to be excessive in the circumstances.

18It is clear from Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont C.A.) that the fixing of costs is not a simple mathematical calculation but rather the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

19In all of the circumstances of this case, there having been divided success on two of the issues and the applicant being successful, albeit at a much lower rate than had been requested, and the other factors set out in Rule 24 of the Family Law Rules, the respondent shall pay costs to the applicant in the amount of $3,000.00 inclusive.

MacPherson J.