Graham v. Sherman, 2015 ONSC 1882
ORILLIA COURT FILE NO.: FC-12-36-00
DATE: March 23, 2015
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Scott Graham, Applicant
and
Amy Sherman, Respondent
BEFORE: The Honourable Madam Justice H. McGee
COUNSEL: Scott Graham – self-represented
Kenna Bromley, for the Respondent
HEARD: December 4, 2014
costs endorsement
[1] The respondent mother seeks costs of $1,703.22, and disbursements of $245.47; each inclusive of HST for a total claim of $1,948.69. The costs relate to the preparation for, and hearing of a trial on the issue of a name change for the parties’ daughter, as sought by the applicant father. The father was not successful.
[2] The issue of a name change as sought was complex, as the manner in which the father framed the relief was not available in law. It was also outside the scope of pleadings, and not listed as an issue on the Trial Management Conference Endorsement of October 29, 2014.
[3] The applicant father asks that no costs be ordered. He does so, on two mistaken grounds. The first is that there has been divided success. The respondent’s reply sets out in a concise fashion why the father is incorrect in his view of divided success. The court finds that the mother was wholly successful. Success is the starting point for a consideration of costs; see Rule 24(1) of the Family Law Rules, and Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330.
[4] The second ground for resisting costs is the father’s view that a party receiving legal aid is not entitled to costs. However, the case law is well settled that the receipt of legal aid is not a factor in determining costs. See Ramcharitar v. Ramcharitar, Jagam and Legal Aid Ontario, 2002 CarswellOnt 3666 (Ont. S.C.) at paragraph 25; and Alvarez v. Smith, 2008 CarswellOnt 1337 (Ont. Fam. Ct.), at paragraphs 17 to 19.
[5] The mother shall receive her costs.
[6] In considering the quantum of costs, the court must consider the factors set out in subrule 24(11) of the Family Law Rules, which reads as follows:
(11) Factors in costs.— A person setting the amount of costs shall consider,
(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 and the party or witnesses, 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.
[7] Neither party served an Offer to Settle. However, neither the rules of the court nor case law prevent a full recovery of costs against a party who has not submitted an offer to settle, Rasmussen v Omotayo 2014 ONCJ 42.
[8] In these circumstances, the fact that the order sought by the applicant was not plead, and was not known to the respondent as being the subject matter of a trial until a very short time prior to its hearing; are sufficient reasons to allow a consideration of a full recovery in the absence of an offer to settle.
[9] The applicant made no genuine effort to understand the basis for the order that he sought. He could not identify, nor place before the court any statutory, or common law authority for the order sought. Such a lack of preparation caused increased costs to the applicant, which is properly the subject matter of a full recovery of costs.
[10] I find that the amount of costs sought is most reasonable, if not modest. As above, a full recovery of costs is appropriate in these circumstances. Order to go that the applicant, Mr. Graham shall forthwith pay to the respondent Ms. Sherman the amount of $1,948.69 in costs.
Justice H. McGee
Date Released: March 23, 2015