SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: A.H. v. L.W., 2015 ONSC 757
COURT FILE NO.: 11-218
DATE: 20150202
RE: A.H. v. L.W.
BEFORE: Justice C.J. Conlan
COUNSEL: Carol Allen, for the Applicant
Elli Cohen, for the Respondent
E N D O R S E M E N T O N COSTS
Conlan J.
I. INTRODUCTION
The Background
[1] The Applicant father, A.H., and the Respondent mother, L.W., are the parents of a young boy who was born in 2010 (now four years old).
[2] The parties were together for a few years until they separated in July 2011. They were never married.
[3] A.H. commenced his Application in July 2011, seeking sole custody of the child, or joint custody of the child with primary residency with the father, or joint custody on a shared parenting regime.
[4] In her Answer, the mother sought sole custody, or joint custody with primary residency with the mother.
The Change to the Status Quo and the Motion for Leave to Appeal
[5] On September 26, 2014, Emery J. heard Motions brought by each party. The father wanted custody of the boy, and likewise for the mother.
[6] In an Endorsement dated October 17, 2014, the Justice granted temporary custody of the child to the father and specified access to the mother. That was a change to the status quo of, in essence, shared custody.
[7] L.W. moved for leave to appeal the Temporary Order to the Divisional Court.
[8] After hearing the submissions by counsel at Court on December 19, 2014, I indicated that the mother’s Motion for leave to appeal was dismissed, with written reasons to follow. The Reasons are reported at 2014 ONSC 7486.
[9] I ordered that A.H. shall have his costs of the Motion. The parties have been unable to agree on quantum. I have reviewed written submissions in that regard.
II. THE POSITIONS OF THE PARTIES
[10] A.H., the successful party on the Motion, has filed a Bill of Costs which shows a total amount of $8,041.30 on a substantial indemnity basis, nearly $7200.00 of which is for fees. On a partial indemnity scale, the total amount sought is just over $6000.00 (close to $5400.00 for fees).
[11] L.W. submits that the award of costs ought to be $3500.00 in favour of the father, payable in the cause.
III. ANALYSIS
Which Rules Apply?
[12] As a preliminary matter, the mother objects to the father’s references to the Family Law Rules in his costs submissions. L.W. submits that the Rules of Civil Procedure, specifically Rule 57, ought to govern my decision on costs.
[13] I disagree with the mother on that point.
[14] The fact that the mother’s Motion for leave to appeal was brought under Rule 62.02 of the Rules of Civil Procedure is not determinative of which Rules ought to apply to a consideration of costs.
[15] The Rules of Civil Procedure apply to civil cases. At times, they are incorporated by reference in to the Family Law Rules. But where the Family Law Rules explicitly deal with the issue, such as costs, those Rules apply.
[16] It is nonsensical to apply Rule 57 of the Rules of Civil Procedure to my decision on costs when the Family Law Rules expressly apply to all family law cases in the Superior Court of Justice [see subrule 1(2)] and where the Family Law Rules contain a complete discussion of the issue of costs (see Rule 24). Further, subrule 24(1) explicitly clarifies that the Rule covers motions and appeals in family law cases.
The Issues
[17] There is no question that A.H. was entirely successful on the Motion and is consequently presumed to be entitled to costs. The only issues are quantum and whether the costs ought to be payable now or in the cause.
Quantum of Costs
[18] First, on quantum, the overriding principle is to make an award that is fair, just and reasonable in all of the circumstances including what the unsuccessful party would have expected to pay. It is not simply a mechanical exercise. Boucher, et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.).
[19] The objectives are to partially indemnify successful litigants, to encourage settlement and to discourage and sanction inappropriate conduct by litigants. Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.).
[20] This is not a proper case for recovery of costs on a substantial indemnity basis. Partial indemnity is more reasonable in these circumstances.
[21] Having considered the factors outlined in Rule 24 of the Family Law Rules, and in the absence of any objection being raised by the mother as to the time spent or hourly rate being charged by counsel for A.H., I fix the total costs payable in favour of the father at $5000.00, all-inclusive. That amounts to a slight discount to the benefit of the mother.
Should Costs be Payable in the Cause?
[22] On the issue of whether the costs ought to be payable in the cause, as suggested by the mother, I disagree.
[23] The mother relies on the decision of Wright J. in Sea Vision Marine Products Ltd. v. McKitrick, 1998 CarswellOnt 373 (Gen. Div.).
[24] Too often, that decision has been referred to as some authority for the proposition that, as a general rule, costs in the cause ought to be awarded where the issue will be re-litigated at trial.
[25] With respect, the decision in Sea Vision, supra stands for no such proposition.
[26] At its highest, Sea Vision, supra simply recognizes that the Court has the discretion to award costs in the cause in certain instances. But, generally, the decision of Wright J. stands for a very different proposition – that, in most cases, a Court dealing with an interlocutory proceeding should dispose of the costs of that proceeding at the time (see paragraphs 5 and 6).
[27] I agree with van Rensburg J., as Her Honour then was, in Silver v. Imax Corporation, 2010 ONSC 4017, that the entire decision in Sea Vision, supra has to be considered (and not just paragraph 4 therein).
[28] As Wright J. observed in Sea Vision, supra, costs in the cause in favour of a successful party on a motion are most appropriate when, although it was found that the motion must be decided in that party’s favour, there is some legitimate reason to postpone the payment of costs until further developments are known.
[29] As was stated in Imax Corporation, supra, at paragraph 17, one reason to postpone the payment of costs may be where the successful party’s conduct or motive for bringing or opposing the motion may be suspect.
[30] Here, there is absolutely no reason to postpone the payment of costs.
[31] The father acted responsibly in opposing the mother’s Motion for leave to appeal. That Motion, and the Order of Justice Emery, were necessitated largely because of the mother’s own conduct. The father was wholly successful on the Motion for leave to appeal. And, even if down the road it is decided after a trial that the mother ought to be granted custody of the child, there would still be no reason to deprive the father of his costs of the Motion for leave to appeal.
IV. CONCLUSION
[32] L.W. shall, within thirty (30) days of the date of this Endorsement, pay to A.H. costs in the total amount of $5000.00.
[33] So ordered.
The Honourable Mr. Justice Clayton J. Conlan
DATE: February 2, 2015
COURT FILE NO.: 11-218
DATE: 20150202
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.H. v. L.W.
BEFORE: Justice C.J. Conlan
COUNSEL: Carol Allen, for the Applicant
Elli Cohen, for the Respondent
ENDORSEMENT
CONLAN, J.
DATE: February 2, 2015