CITATION: Downs v. Rogers, 2015 ONSC 7460
COURT FILE NO.: FS-15-0005-00
DATE: 2015-11-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leslene Downs v. Wayne Rogers
BEFORE: Fragomeni J.
COUNSEL: Vershone C. Herd, for the Applicant/Respondent
Leroy A. Crosse, for the Respondent/Appellant
COSTS ENDORSEMENT
[1] On November 16, 2015, for written reasons for Judgment filed, Mr. Rogers’ appeal of the order of the Honourable Madam Justice L. S. Parent of the Ontario Court of Justice at Brampton, Ontario was dismissed. The parties have now both filed written submissions on costs.
[2] Ms. Downs, the respondent on the appeal, seeks costs of the appeal in the all-inclusive sum of $5,793.03.
[3] Mr. Rogers, the appellant on appeal, seeks costs in the all-inclusive sum of $9,434.35. In the alternative Mr. Rogers submits that there should be no order as to costs.
Position of Ms. Downs
[4] Ms. Downs submits that during the hearing of the appeal, Mr. Rogers failed to point to any error committed by the trial judge in her reasons for fixing the $12,000 credit awarded to Mr. Rogers against his child support arrears. Ms. Downs submits further that the grounds of his appeal were without merit and the appellate court declined to re-analyze the evidentiary record that was before the trial judge. Mr. Rogers was asking the appellate court to, in essence, re-try the case.
[5] In those circumstances Ms. Downs, as the successful party, ought to be awarded her costs on the appeal.
Position of Mr. Rogers
[6] Mr. Rogers submits the following:
This action could have been settled months ago were it not for the changing demands of Ms. Downs. Despite the fact that the appeal was dismissed this is a case where Ms. Downs’ actions have resulted in a trial and has extended the time for the appeal to be heard.
Mr. Rogers made numerous efforts to settle.
The matter of fixing a hearing of the appeal was before Justice Price at least twice in January and May 2015 but the applicant waited until two weeks before the Appeal Hearing date of July 27 to bring motions for a stay and for security for costs. Mr. Justice Lemon dismissed one motion and reserved costs to the hearing of the appeal. On the Hearing date, July 27, the applicant again proceeded on a motion for a stay.
Mr. Justice Andre heard the motion but lacked time to hear the appeal and so offered to help settle, asking court staff to remain after 1:00 p.m. Justice Andre pointed out that FRO balance at that time was $16,950.33 and suggested the respondent pay $12,000.00 to settle. All parties agreed and Justice Andre asked that the parties go outside to put it into writing. Counsel for the applicant left the court while the Learned Justice and staff were waiting and never returned. The motion was dismissed and the Justice wrote…. “there must be a judicial determination of the quantum of child support arrears…..” (page 19).
The appeal was not frivolous.
Analysis
[7] In my Reasons for Judgment dated November 16, 2015, I set out the following at paragraphs 28 and 29:
Justice Parent identified the difficulties she had with the evidence and in no uncertain terms set out how those deficiencies affected her analysis and determination of the issues before her. I am not satisfied that she erred in any way in determining the issues in light of the evidentiary record she had before her. It was open and available to Justice Parent to deal with each of the issues as she did recognizing the state of the evidentiary record before her.
It is not the role of this court on appeal to re-try this case. Justice Parent dealt with the issues before her on the evidentiary record presented by the parties. I am satisfied that it was open to her to make the findings she did and in doing so she did not commit palpable and overriding error. The appellant is, in essence, asking the appellate court to analyze the evidentiary record before Justice Parent differently and that is not the function of the appellate court.
[8] I am satisfied in these circumstances that Ms. Downs is entitled to her costs of the appeal. Rule 24(1) of the Family Law Rules states: There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[9] Rule 24(11) sets out the following:
(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. O. Reg. 114/99, r. 24 (11).
[10] I have taken into account the attendances before Justice Lemon and Justice Andre and the results of those attendances in assessing the overall costs awarded to Ms. Downs.
[11] I am satisfied that costs of $4,000 all-inclusive is a fair and reasonable amount.
Disposition
- Mr. Rogers shall pay to Ms. Downs her costs of the appeal fixed in the all-inclusive sum of $4,000.00, payable within 30 days.
Fragomeni J.
Date: November 30, 2015
CITATION: Downs v. Rogers, 2015 ONSC 7460
COURT FILE NO.: FS-15-0005-00
DATE: 2015-11-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leslene Downs v. Wayne Rogers
BEFORE: Fragomeni J.
COUNSEL: Vershone C. Herd, for the Applicant/Respondent
Leroy A. Crosse, for the Respondent/Appellant
COSTS ENDORSEMENT
Fragomeni J.
DATE: November 30, 2015