SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-14-81279-00
DATE: 2015-11-12
RE: Leslie Ann Smith v. Bruce Smith
BEFORE: Lemon J.
COUNSEL:
S. Majic, Counsel for the Applicant
J. K. Heersche, Counsel for the Respondent
COSTS ENDORSEMENT
The Issue
[1] On September 24, 2015, I resolved a number of issues between the parties. I must now deal with costs.
Positions of the Parties
[2] Mr. Smith submits that he was entirely successful and seeks costs of $22,291.96 on a partial indemnity basis, $32,083.41 on a substantial indemnity basis or his actual expenses of $26,919.31.
[3] In response, Ms. Smith submits that Mr. Smith’s costs demands should be denied and she should receive costs in the amount of $20,930.82.
Legal Authorities
[4] The Family Law Rules provide that:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) 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 signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[5] Costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
(See: Fong et. al. v. Chan, 1999 2052, 46 O.R. (3d) 330. (O.N.C.A.).
[6] I am required to take into consideration what an unsuccessful party would reasonably expect to pay for such a proceeding. Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (Ont. C.A.), 71 O.R. (3d) 291 at para. 24.
Analysis
[7] In this motion, Mr. Smith was successful on the issues of child support, interim equalization, and retroactive child support. His issues of the sale of the matrimonial home, occupation rent, and vehicle lease payments were adjourned to trial in January of 2016.
[8] On the other hand, Ms. Smith was unsuccessful on the issues of imputing an income to Mr. Smith, spousal support, disclosure, life insurance, and various third party production orders. She was successful in avoiding the sale of a matrimonial home, at least prior to trial.
[9] Justice Pazaratz dealt with the issue of success in Scipione v. Scipione, 2015 ONSC 5982. He said:
Why do written costs submissions frequently try to lead us into some sort of parallel universe where losers are actually winners?
If you lost, don’t re-write the facts to argue that you won. It only makes the judge go back – repeatedly – to see if we’re talking about the same case.
And if the best you got was a mixed result on one of the issues, don’t claim you were right to relentlessly pursue all of the issues. Especially when you ignored repeated opportunities to pursue only the claims which might have had some merit.
Ruled 18 and 24 of the Family Law Rules set out many important and complex considerations in dealing with costs. In making submissions, counsel would be remiss if they didn’t vigorously advance every potential argument on behalf of their client. Because in determining costs, fairness to both the winner and the loser is paramount.
But the starting point – determination of success – shouldn’t be so muddy.
Who got what they asked for?
That question shouldn’t be so complicated.
[10] It is not clear to me why Ms. Smith would suggest that she is entitled to costs given that she has either been unsuccessful on an issue or had other issues simply transferred to a trial three months away. Mr. Smith has been successful and is presumed to be entitled to his costs.
[11] The terms, “partial indemnity” and “substantial indemnity” do not appear in the Family Law Rules. In circumstances such as these, there is certainly no authority for the proposition that costs can be more than actual costs.
[12] Ms. Smith’s submissions refer to a variety of factual issues that have either already been resolved or are not in the record. Those submissions are improper and of no assistance to me in assessing the costs.
[13] It is difficult to accept the figures put forward by the parties for this one hour motion. However, there were substantial productions. There would also have been a great deal of time spent to prepare the motion, even if not to argue it.
[14] One of the factors that I should consider is what the losing party would expect to pay. Given the submissions of Ms. Smith, clearly, she would expect to pay costs in the area of $21,000.
[15] Taking all of the factors into consideration as set out above, I fix costs in the amount of $21,000, payable by Ms. Smith within 30 days.
Lemon J
DATE: November 12, 2015
COURT FILE NO.: FS-14-81279-00
DATE: 2015-11-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leslie Ann Smith v.
Bruce Smith
BEFORE: Lemon J.
COUNSEL: S. Majic, Counsel for the Applicant
J. K. Heersche, Counsel for the Respondent
COST ENDORSEMENT
LEMON J.
DATE: November 12, 2015