SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-14-00

DATE: 20151019

RE: THOMAS WILLIAM MOORE, Applicant

AND:

MARY ANNE MOORE, Respondent

BEFORE: The Hon. Mr. Justice P. Sutherland

COUNSEL:
L. Burgess Counsel, for the Applicant

C. Baker Counsel, for the Respondent

HEARD: September 17, 2015

COSTS ENDORSEMENT

[1] On September 17, 2015, I heard a motion brought by the Applicant Father for a temporary restraining order pursuant to s. 46 of the Family Law Act.

[2] I rendered my decision with respect to the motion brought by the Applicant Father and granted a temporary restraining order in favour of the Applicant Father but not to the extent requested by him.

[3] In my decision, I invited the parties to provide me with written submissions on costs. I have now received the written submissions of costs of the Applicant and the Respondent.

[4] Pursuant to the Family Law Rules, namely s. 24(1), a presumption exists that costs should be awarded to the successful party. The Court of Appeal in the decision of Serra v. Serra[^1] confirmed that the modern costs rules are designed to encourage and foster three fundamental purposes, namely to partial indemnify successful litigants for the costs of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[5] Further, the Court of Appeal also indicated in the decision of Boucher et al. v. Public Accountants Council for the Province of Ontario[^2] and Delellis v. Delellis[^3], that when assessing costs it is not simply a mechanical exercise. It is not simply a calculation of hours spent and hourly rates but the court is to take a proportional methodology. The overall objective is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

[6] Rule 24(11) of the Family Law Rules sets out factors for the court to take into consideration when awarding costs.

[7] Having reviewed the written submissions for both the Applicant and the Respondent, I am cognizant of (a) that the Applicant was not entirely successfully on the motion relief requested; (b) neither the Applicant nor the Respondent acted in an unreasonable manner; (c) there were no offers to settle between the Applicant and the Respondent; and (d) the Respondent is no longer working as an emergency registered nurse, although there is a dispute as to the reason for the Respondent ending her employment as an emergency registered nurse. She is in any event not working fulltime and is attending her Masters in nursing.

[8] This is not a case where full indemnity for costs should be warranted. Both the Applicant and the Respondent agree that partial indemnity costs should be awarded. The Applicant is seeking partial indemnity costs inclusive of disbursements and HST in the amount of $4,415.79.

[9] The Respondent submits that the correct amount for costs should be $2,500 inclusive of HST and disbursements with a payment plan over five months given the financial circumstances of the Respondent.

[10] Having reviewed the bill of costs forwarded by the Applicant, I do find that the disbursements claimed are reasonable however, I do find that the amount of time spent is slightly excessive.

[11] In taking all of these factors into consideration, I order that the Respondent shall pay costs to the Applicant in the amount of $3,000 inclusive of HST and disbursements. The Applicant is to make payments of $500 per month commencing November 19, 2015 and on the 19th day of each month until the amount is paid in full. If the Respondent defaults on any of the payments, the amount of costs still due and owing shall become immediately payable by the Respondent to the Applicant.

Sutherland J.

Date: October 19, 2015

[^1]: 2009 ONCA 395, [2009] O.J. 1905 (C.A.)

[^2]: [2004] No. 2634 (C.A.)

[^3]: 2005 36447 (ON SC), [2005] O.J. No. 4345