SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: F10,617-05
DATE: 2014-10-03

RE: Nicole Monique Lalonde, Applicant

AND:

Yvon Jean Paul Lalonde, Respondent

BEFORE: The Honourable Madam Justice Louise L. Gauthier

COUNSEL:
Leo P. Arseneau, for the Applicant

Richard K. Guy, for the Respondent

HEARD: Written Submissions

ENDORSEMENT on costs

[1] Mr. Lalonde’s Motion to Change, initiated in September 2012, was granted. Spousal support was terminated effective December 1, 2014. The Claim for increased spousal support was dismissed. Ms. Groulx’s claim for reimbursement for unpaid medical expenses was abandoned the morning of trial.

[2] Also on the morning of trial, Mr. Lalonde acknowledged that he was in arrears of support and he provided a cheque for in excess of $15,000, if I recall correctly.

[3] The usual procedural steps were taken, i.e., Case Conference, Questioning, Settlement Conference, Trial Management Conference and Trial. The trial took two days.

[4] Mr. Lalonde is presumptively entitled to costs, having been the successful party. Rule 24(1) of the Family Law Rules.

[5] No offers were made in this case.

[6] Neither party behaved unreasonably in this case.

[7] Mr. Lalonde seeks partial indemnity costs of $20,104.88 plus HST of $2,613.64, plus disbursements and HST of $1,871.99. The amount for fees represents two-thirds of the amount charged to Mr. Lalonde, based on an hourly rate of $350.

[8] Ms. Groulx suggests that there either ought to be no costs, or costs fixed in the amount of $5,000.

[9] The case was important to the parties as is almost always the case. It was not particularly complex, but also did not have a reasonably predictable outcome.

[10] The fixing of costs is not a purely mathematical exercise of tallying hours spent, or relying solely on counsel’s dockets. Rather, the court is to take a global view to determine whether the costs as claimed are within the reasonable range, and fall within the reasonable expectation of the parties. The overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Kaverimanian v. Kaverimanian 2013 ONSC 5265, [2013] O.J. No. 3671.

[11] Although a party’s poor financial position has no effect on that party’s obligation to pay costs, it nonetheless can be taken into account when setting the amount of costs.

[12] Ms. Groulx’s counsel points out that the costs requested would represent two-thirds of the Applicant’s yearly income.

[13] While I recognize that Ms. Groulx’s employment income is modest, she nonetheless enjoys a comfortable lifestyle and she does have investments and savings.

[14] After having taken all the relevant factors into account, I conclude that a fair and reasonable amount for the costs of this action is $10,000 inclusive of HST.

[15] Insofar as the disbursements are concerned, I will require further information. Mr. Lalonde’s counsel has raised an issue about the timing of the request for the consulting actuaries’ report having an impact on the cost of same. In these circumstances, I do not have all of the information necessary to deal with the issue of a potential sharing of the disbursements. It is my hope that counsel can come to some agreement on this, avoiding the need for the parties to incur further legal expenses.

Conclusion:

[16] Ms. Groulx shall pay costs of this proceeding to Mr. Lalonde in the amount of $10,000, plus whatever amount the parties agree to for disbursements. If there is a failure to agree, counsel are requested to contact the Trial Co-Ordinator to set up a meeting with me so I can decide the matter.

The Honourable Madame Justice Louse L. Gauthier

Date: October 3, 2014