Court File and Parties
Court File No.: FS-15-82801-00 Date: 2016-04-12
Superior Court of Justice - Ontario
Re: Kimberley Flowers (a.k.a. Landry) v. Romeo Flowers
Before: Justice J.M. Fragomeni
Counsel: Amrit Kaur Bhangu, for the Applicant Shikha Sharda, for the Respondent
Endorsement re: Costs
[1] The Applicant wife, Kimberley Flowers (a.k.a. Landry) was completely successful on the motion. Pursuant to Rule 24(1) of the Family Law Rules there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[2] The Respondent husband has not established or demonstrated that the presumption ought to be displaced.
[3] I am satisfied that the wife is entitled to costs. The issue to be determined is the quantum.
[4] The wife seeks costs in the total amount of $5,821.93 comprised of fees of $5,100, disbursements of $52.15 and HST of $669.78.
[5] At para. 5 of her Costs Submissions the wife sets out the following:
- The Respondent has behaved unreasonably throughout the proceedings by bringing a motion despite his failure to file a Form 10: Answer in this matter. The Respondent’s previous motion was dismissed on October 16, 2015 for failure to file a Form 10: Answer, however the Respondent brought this motion on March 3, 2016 without taking any steps to file the required Form 10: Answer with the Court.
[6] The husband’s motion was without any evidentiary foundation and he did not provide to the court a basis to substantiate the claims he was making.
[7] Apart from my finding that he had no standing to even bring the motion, he failed on every issue on the merits.
[8] The wife’s counsel was called to the Bar in 2014 and is billing the wife at a rate of $250 per hour. The Bill of Costs sets out the total hours spent on this motion at 20.4 hours.
[9] The husband submits that costs in the range of $6,000 for this motion is unreasonable and excessive. The husband submits that time spent in the range of $2,500 is reasonable and on a partial indemnity basis that would amount to costs in the range of $1,200 to be paid to the wife.
[10] It is important to keep in mind that the reasonable expectations of the unsuccessful party is a factor to consider in fixing costs.
[11] In Boucher v. Public Accountants Council (Ontario), 2004 ONCA 14579, [2004] O.J. No. 2634 the court stated the following:
[T]he fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates... Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
[12] I am satisfied, in all of the circumstances of this case, that a reasonable amount for costs is $3,000.00, all-inclusive.
[13] Order to issue as follows:
- that the Respondent husband shall pay to the Applicant wife her costs fixed in the all-inclusive sum of $3,000.00;
- that these costs shall be paid to the wife from the husband’s share of the net proceeds of the sale of the matrimonial home;
- that the real estate lawyer holding the net proceeds of sale of the matrimonial home shall dispense the funds in accordance with this order and the order of March 31, 2016.
FRAGOMENI J. DATE: April 12, 2016