SUPERIOR COURT OF JUSTICE - ONTARIO

OTTAWA COURT FILE NO.: FC-11-2557-4

DATE: 2015/09/30

RE: Rodney Cameron, Applicant

AND:

Laurie Cameron, Respondent

BEFORE: Justice Patrick Smith

COUNSEL:
Jodi Fleishman, Counsel, for the Applicant

Paul Jakubiak, Counsel, for the Respondent

HEARD: via written submissions

ENDORSEMENT on costs

[1] In paragraph 16 of my endorsement dated August 20, 2015 I ruled that the mother should have her costs for the father having abandoned his motion to vary. Written submissions on the issue of costs were ordered.

[2] In paragraph 18 of my endorsement I reserved my decision regarding the costs of the mother’s motion pending receipt of written submissions.

[3] I have now received and reviewed both sets of submissions.

Costs of the Abandoned Motion

[4] Notwithstanding that the father has not technically abandoned his motion to vary it is clear that he is no longer pursuing his motion. Accordingly, Rule 12(3) of the Family Law Rules do not technically apply however Rules 38.08(3) of the Rules of Civil Procedure apply by analogy and provides that where an application is abandoned or deemed to be abandoned the responding party is entitled to costs.

[5] The general principles of costs set out in s. 131 of the Courts of Justice Act and the provisions of Rules 57.01 of the Rules of Civil Procedure apply.

General Principles of Costs

[6] The general rule is that costs should follow the event. As stated in Orkin, The Law of Costs:

In general, it can be said that when a motion is properly brought costs should be awarded to the moving party, if successful, otherwise to the responding party subject always to the discretion of the judge of judicial officer. (Mark Orkin, The Law of Costs, 2nd ed., vol. II, Canada Law Book, Section 402 at page 4-1.)

[7] In Fong et al v. Chan et al, (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:

• to indemnify successful litigants for the cost of litigation;

• to encourage settlements; and

• to discourage and sanction inappropriate behaviour by litigants.

[8] Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by a court when exercising its discretion under s. 131 of the Courts of Justice Act. The rule places emphasis on the result in the proceeding and any written offer to settle when considering the other factors enumerated in the rule.

[9] The text of rule 57.01(1) provides as follows:

57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

• the amount claimed and the amount recovered in the proceeding;

• the apportionment of liability;

• the complexity of the proceeding;

• the importance of the issues;

• the conduct on any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;

• whether any step in the proceeding was,

• improper, vexatious or unnecessary, or

• taken through negligence, mistake or excessive caution;

• a party’s denial of or refusal to admit anything that should have been admitted;

• whether it is appropriate to award any costs or more than one set of costs where a party, commenced separate proceedings for claims that should have been made in one proceeding; or

• in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and

• any other matter relevant to the question of costs.

[10] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.

[11] No Bill of Costs was presented to the Court.

[12] The father submits that he is prepared to pay costs of $2,500.00.

[13] The mother attempted to settle the costs of the abandoned motion. In a letter dated February 3, 2015 counsel for the mother offered to settle the quantum of costs at $10,000.00 when her actual costs were in excess of $16,000.00.

[14] Costs are awarded on a partial indemnity basis to the mother fixed in the amount of $7,500.00 payable forthwith.

Costs of the Mother’s Motion

[15] Rule 24 of the Family Law Rules provides that a successful party is entitled to the costs of a motion. If success is divided, the court may apportion costs as appropriate.

[16] Rule 24(11) lists the factors which must be considered when ordering costs.

[17] In addition to the enumerated factors in Rule 24(11), one must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice.

[18] Although the Ontario Court of Appeal indicates that the setting of costs is not a mechanical calculation of hours multiplied by rates, the factors set out in Rule 24(11) do direct the court in coming to its decision to look at the time spent by the lawyer for the successful party and the rates of that lawyer.

[19] Both parties served offers to settle. The parties experienced mixed success on the mother’s motion.

[20] The mother’s seeks costs of $3,000.00 for her motion; the father suggests that he was more successful and that costs be awarded in his favour in the amount of $ 12,691.65 or, in the alternative there be no order as to costs.

[21] I am of the view that the mother was more successful than the father and that costs should therefore be apportioned in her favour.

[22] Costs are awarded to the mother fixed in the amount of $3,000.00 payable forthwith.

Patrick Smith J.

Date: September 30, 2015