SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-585
DATE: October 13, 2015
RE: Neil Coates, Applicant
AND
Cheryl Ann Coates, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Daniel Howard, Counsel for the Applicant
Diana Tomazin, Counsel for the Respondent
HEARD: Written Submissions
COSTS ENDORSEMENT
James J.
[1] This endorsement deals with the respondent’s claim for legal costs following the trial of this action. The applicant recognizes that the respondent is entitled to recover some amount for costs and submits that the calculation of the respondent’s costs should be on a partial indemnity basis rather than the higher substantial indemnity basis which has been claimed by the respondent.
[2] The respondent’s claim consists of 64.2 hours at a full billing rate of $200 an hour which equals $13,357.64 plus disbursements and GST.
[3] Although the respondent was provided with legal representation pursuant to the Legal Aid Plan of Ontario at a rate less than her lawyer’s regular $200 per hour rate, it is a well- established principle that amount recoverable from the opposing party is not to be discounted because the party claiming legal costs had the benefit of legal aid.
[4] Counsel for the applicant says that $3,000 would be a reasonable amount for legal costs in the circumstances present here. The applicant says he suffers from ongoing health problems that complicated his ability to deal with the issues raised in the lawsuit. In addition, because he resided in the United Kingdom for most of the time that this litigation was underway, he had difficulty comprehending what was expected of him and was unfamiliar with the procedure to be followed. Be that as it may, a litigant who chooses to represent himself has an obligation to inform himself of his responsibilities, otherwise non-compliance is rewarded.
[5] The usual scale of costs payable by the losing party to the winning party is calculated on a partial indemnity basis. The award of costs on a higher scale is usually reserved for situations where a party is deserving of sanction for improper conduct or through the operation of the rule respecting offers to settle. In this case, the applicant failed to properly comply with his disclosure obligations but in my view this is not sufficient to justify awarding costs at a rate greater than the usual partial indemnity scale. At the same time, it is clear that the respondent’s costs were higher because of non-compliance by the applicant with the financial disclosure rules and this fact ought to be taken into account.
[6] The trial lasted two days. While the respondent seeks recovery of her legal costs from the commencement of the legal proceedings, there were conferences where no costs order was made nor were costs reserved to be dealt with later. The one exception is in relation to the aborted conference on March 13, 2015 at which time McNamara, RSJ ordered the matter to trial.
[7] In my view the respondent was generally successful at trial because she secured a substantial award for retro-active spousal support and ongoing spousal support.
[8] One consideration that militates against a high costs award is the fact that the respondent was ordered to pay a large sum for support arrears plus ongoing support. It would not be in the applicant’s interests to impose such a large sum for legal costs that it increases the risk of non-payment of support. In the circumstances present here, I have concluded that the respondent is entitled to recover from the applicant legal costs of $6,500 for fees, inclusive of HST, and disbursements of $470.14 for a total (inclusive of taxes) $6,970.14, payable forthwith.
Mr. Justice Martin James
DATE RELEASED: October 13, 2015
COURT FILE NO.: FS-13-585
DATE: October 13, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Neil Coates, Applicant
AND
Cheryl Ann Coates, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Daniel Howard, Counsel for the Applicant
Diana Tomazin, Counsel for the Respondent
COSTS ENDORSEMENT
James, J.
Released: October 13, 2015