COURT FILE NO.: FC-14-2011
DATE: 2015/11/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NATALIA LOURDES NOBLE RECALDE - Applicant v. DUSTIN MICHAEL ALONGI - Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Michael Rappaport, for the Applicant
Karen P. Pelletier, for the Respondent
HEARD: Written Submissions October 28 and November 3, 2015
ENDORSEMENT on costs
[1] I have reviewed the costs submissions prepared by counsel for both parties.
[2] Counsel for the Respondent, Dustin Michael Alongi, seeks costs payable on a “full recovery basis” in the amount of $11,064.86, inclusive of taxes and disbursements. The Respondent’s Bill of Costs is found at Tab 6 of the Respondent’s Costs Submissions.
[3] The Respondent claims full recovery of costs on the basis that she was successful on the motion and that the Applicant failed to accept the Respondent’s reasonable offers to settle, failed to make any reasonable settlement offers and refused to cooperate in or negotiate a resolution.
[4] Included in the Respondent’s Costs Submissions are copies of e-mails between counsel from September 8, 2015 to September 11, 2015. Among other things, these e-mails set out the Respondent’s proposal regarding a parenting plan. In my decision released on October 15, 2015, I made an order for a parenting plan which is similar to that proposed by the Respondent.
[5] On the issue of the parenting schedule for the child, Dante Leon Alongi Noble born April 20, 2009 (“Dante”), the Respondent was successful. The Applicant sought custody of Dante and access that was much less than that established by the parenting order. Also, the parenting order did not award custody of Dante to either parent.
Child Support
[6] The Applicant also sought support from the Respondent for Dante. She sought support on the basis of an attributed income and sought to attribute the income that the Respondent had been earning while working in the Province of Alberta.
[7] As set out in my reasons, the Respondent’s employment in Alberta ended, through no fault of his own, and he returned to Ontario. At the time of the motion, the Respondent had applied for employment but had not yet secured a job. He was receiving employment insurance.
[8] The Applicant was concerned that the Respondent had not taken steps to seek new employment upon his return to Ontario. For the reasons set out in my endorsement, I found that the Respondent was reasonable in not looking for employment until early September, when Dante was returned to the Applicant. Notwithstanding his lack of employment, the Respondent conceded that support should be based upon the Child Support Guidelines and should be payable and based upon his employment insurance benefits.
[9] In her submissions, the Applicant argues that support should have been ordered based upon a projected or imputed income rather than the income that he was actually receiving at the time of the hearing. Those submissions were made on the hearing before me. I did not impute income to the Applicant.
[10] In her submissions on costs, the Applicant submits that her position on custody and access was reasonable given that the Respondent had been living in Alberta for the two years prior to June 2015. Again, for the reasons set out in my endorsement, I determined that the parties should share Dante’s care on a 50/50 basis.
[11] Finally, the Applicant submits that the Respondent should be denied any reimbursements for legal fees as those monies would have been better spent on summer camp for Dante. Those submissions are not helpful to a determination of the quantum of costs.
[12] The Respondent was mostly successful on the motion. Further, the Respondent had made settlement proposals in an attempt to resolve the issues without a court hearing. The order granted was very close to the Respondent’s settlement position. For those reasons, I find that the Respondent is entitled to costs of the motion.
[13] I have reviewed the Bill of Costs of the Respondent. The description of the services rendered from September 8 to October 23, 2015 appears to include matters outside the scope of the motion. Also, there appears to be time charged for a person identified as an assistant at the rate of $100 per hour. The time shown for counsel is 41.5 hours and for her assistant, 13.5 hours. There is no breakdown of the work as performed by counsel or by her assistant.
[14] I find the amount claimed in fees for the motion of $9,707.75 to be excessive given the issues. Also, the Bill of Costs includes time that would have been spent to prepare financial statements, meet with the client and other matters, whether or not the motion was brought or heard. Although it is not awarded here, this order is made without prejudice to seek recovery of that time on the Application itself.
[15] The Respondent’s submissions also identify that the Respondent prepared a Factum as required by the Rules. The Applicant did not do so. As a result, the Applicant was saved those costs.
[16] In the Applicant’s Costs Submission the Applicant’s counsel states that he spent approximately 15 hours on the matter.
[17] In making a costs order in this matter, I must take into account the financial circumstances of the Applicant. While her financial circumstances should not shield her against any responsibility for costs, it must be taken into account when determining the quantum.[^1]
[18] As previously stated, counsel for the Applicant did not prepare a factum. I have taken that into account in determining that the reasonable time to be allocated to this motion is 20 hours.
[19] I award the Respondent costs of $3,520 plus HST together with the disbursements of $95.10 as set out in the Respondent’s Bill of Costs. The fees are based on 80% of her counsel’s stated hourly rate of $220.00. For clarity in making this order I have also taken into account that counsel for the Respondent allowed him a courtesy discount of $872.62, inclusive of HST.
Madam Justice Liza Sheard
Date: November 26, 2015
COURT FILE NO.: FC-14-2011
DATE: 2015/11/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Natalia Lourdes Noble Recalde -Applicant v. Dustin Michael Alongi - Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Michael Rappaport, for the Applicant
Karen P. Pelletier, for the Respondent
ENDORSEMENT ON COSTS
Released: November 26, 2015
[^1]: Parsons v. Parsons (2002) 2002 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.)