OTTAWA

COURT FILE NO.: FC-10-2602-1

DATE: 2015/09/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Grace Sonya Cesare, Applicant

AND:

Royal Myre, Respondent

BEFORE: Justice Patrick Smith

COUNSEL:
Susan Galarneau, Counsel, for the Applicant

The Respondent was Self-represented

HEARD: via written submissions

ENDORSEMENT ON COSTS

[1] In my endorsement dated August 17, 2015 I asked that the parties provide written submissions on the issue of costs within 30 days.

[2] I have received the submissions from the Applicant but nothing from the Respondent.

The Rules of Costs

[3] 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.)

[4] 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.

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

[6] Rule 24(8) of the Family Law Rules provides that: “If a Party has acted in bad faith, the Court shall decide costs on a fully recovery basis and shall Order the party to pay them immediately”.

[7] The factors which must be considered when ordering costs listed in Rule 24(11) include:

• the importance, complexity or difficulty of the issues;

• the reasonableness or unreasonableness of each party’s behaviour in the case;

• the lawyer’s rates;

• 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 signatures of the order;

• expenses properly paid or payable; and

• any other relevant matter.

[8] 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.

[9] The Ontario Court of Appeal in Boucher v. Public Accountants Council For The Province of Ontario 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), albeit a case which was not a family law case, stated that the fixing of costs does not begin or end with the calculation of hours multiplied by rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the amount of costs is also a relevant consideration.

[10] Although the 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.

[11] Rule 24(11)(f) read in conjunction with s. 131 of the Courts of Justice Act, provides the court with a wide discretion when deciding the issue of costs. The conduct of the parties is one of the additional factors that may be considered when exercising the discretion whether or not to order costs.

Analysis

[12] The issues before the court were important (access to and support of the children).

[13] The Respondent refused to settle the support issues although he ultimately did not contest the mother’s calculation of what support was owed. Further, he maintained an unreasonable position throughout that the court should impose an access regime on the children. His conduct significantly increased the legal costs of the mother.

[14] The Applicant was successful on all claims. The father’s Motion to Change was dismissed and support was adjusted in accordance with the existing order.

[15] The mother served an Offer to Settle the terms of which were substantially in accordance with my order. The father should have accepted the offer.

Disposition

[16] For all of the above reasons the mother is entitled to her costs on a full indemnity basis.

[17] Counsel for the mother has twenty-five years of experience. Her hourly rate of $295.00 is reasonable.

[18] Costs are awarded to the mother fixed at $12,000.00 payable forthwith.

Justice Patrick Smith

Date: September 30, 2015