SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No.: 71/11
Date: 2015 09 24
RE: T.F. v. L.D.
Before: Bloom, J.
Counsel:
G. McCLelland, for the Applicant
G. Grant, for the Respondent
Heard: August 20 and 21, 2015
COSTS ENDORSEMENT
[1] These are my reasons on the matter of costs on the motion to change, the reasons on which I delivered on August 21, 2015. I have reviewed the written submissions provided by counsel pursuant to my direction.
[2] The Applicant submits that the issue of costs be adjourned pending the outcome of an appeal which he intends to bring with respect to the mobility portion of my August 21 reasons. Alternatively, the Applicant asks that a portion of the costs issue be deferred until after the decision on the appeal.
[3] Family Law Rule 24(10) mandates that the normal rule is that costs would be fixed by me promptly. I see no reason to deviate from that prescription.
[4] Family Law Rule 24(1) provides for “a presumption that a successful party is entitled to the costs of a motion.” In the case at bar the Respondent was clearly successful, particularly as regards the key issue of mobility. Accordingly, she is entitled to her costs on the motion to change.
[5] The remaining issues relate to the items for which costs are to be awarded and the quantum of costs.
[6] There were essentially three court appearances: (1) the case conference heard on July 8, 2015 before the Honourable Justice Price; (2) the appearance before Justice LeMay on August 14, 2015; and (3) the two days of argument of the motion before me on August 20 and 21, 2015.
[7] The Respondent’s success on the substance of the motion, in my view, entitles her to costs on the three appearances.
[8] The issue then is the quantum of the costs. The Respondent argues that the Applicant acted in bad faith. If I accept that submission, FLR 24(8) would support costs on a full recovery basis. I am not prepared to make a finding of bad faith. As the Applicant noted in his submissions relying upon Hendry v. Martins, [2001] O.J. No. 1098 (ONSC), bad faith requires “sinister motive” and is “not simply bad judgment.” I do not find a sinister motive on the part of the Applicant in this case.
[9] FLR 24(11) mandates that I consider the importance of the issues on the motion. It is clear that the issue of mobility was the most significant issue before me, and was very important to the parties and the child. I am also cognizant of the large volume and complexity of the record, factors also relevant under FLR 24(11).
[10] The Respondent contends that the Applicant’s conduct has been unreasonable; FLR 24(11)(b) would be applicable in that connection.
[11] I find that the Applicant pursued his course vigorously. However, given the nature of the inflammatory false allegations of sexual abuse that had been made against him, I do not find that his conduct crossed into the unreasonable.
[12] I find that having regard to the above analysis and taking into account all of the circumstances of the case, the Respondent is entitled to her costs on a substantial indemnity basis.
[13] I have also reviewed for reasonableness the Costs Outline provided by the Respondent. I fix costs payable to the Respondent by the Applicant in the amount of $20,470.00 plus HST of 13% being $2,661.10 for a total of $23,131.10.
Bloom, J.
DATE: September 24, 2015
COURT FILE NO.: 71/11
DATE: 2015 09 24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: T.F. v. L.D.
BEFORE: Bloom, J.
COUNSEL: G. McCLelland, for the Applicant
G. Grant, for the Respondent
COSTS ENDORSEMENT
Bloom, J.
DATE: September 24, 2015