MacDonald v Durrant, 2016 ONSC 5253

Court File and Parties

COURT FILE NO.: FC-12-1210-01 DATE: 20160818 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEVAKI MACDONALD, Applicant AND: ANDREW DURRANT, Respondent

BEFORE: THE HON. JUSTICE J.R. MACKINNON

COUNSEL: Jason Murphy, for the Applicant Andrew Durrant, Self-Represented

HEARD: By written submissions

Endorsement on Costs of June 9, 2016 Mobility Motion

1I have reviewed McDermot J’s June 22 TMC Endorsement. Costs of the June 9 motion before me where neither agreed upon or fixed, but rather referred back to me for disposition. I have fully considered the costs submissions of the Applicant dated June 17. No responding costs materials were provided by the Respondent.

2The Applicant was the successful party on the motion. She obtained a result that was more favourable than her Offer to Settle when considered along with her June 2, 2016 affidavit. She seeks full recovery costs of the motion and asks that they be enforceable by FRO as child support. There is nothing in the materials that persuades me other than to conclude that the Applicant is entitled to substantial indemnity costs of the motion.

3In fixing costs, a judge is not assessing costs as if he or she were performing a function of an assessment officer. The object of fixing costs is to avoid the delay and added costs of a full assessment. The court determines what the services devoted to the proceedings are worth. The incurring of costs and time spent by counsel or a party in any litigation is essentially the exercise of judgment. The prudence, foresight and imagination of their judgment must be considered at the time the disbursement was incurred or the work done. It is inappropriate to apply a test of hindsight to determine whether a service or charge was for an extra, not reasonably necessary to advance the client’s position. The time to view the decision to commit services to the issue is before the motion.

4I have considered all the discretionary factors in Rule 24 of the Family Law Rules including the experience of successful counsel, the rates charged, and the hours spent. I have considered the principal of indemnity and the amount of costs an unsuccessful party could reasonably expect to pay in relation to this motion. The overriding principle is what is reasonable.

5In coming to a conclusion I have attempted to be fair to both parties. I repeat that I am not meticulously assessing costs as if I was performing the function of an assessment officer but I have conducted a critical examination of the work performed by counsel for the Applicant.

6I have a wide latitude and do not consider it to be my role to second guess the time spent by counsel unless the time was manifestly unreasonable in the sense that the total time spent or disbursements incurred were clearly excessive, or that the matter was the subject of an unwarranted number of legal personnel. None of those exceptions is demonstrated in this case.

7Mobility cases are routinely recognized as amongst the most difficult a court has to decide. This motion required comprehensive materials to be put before the court. Three affidavits, a financial statement, factum and brief of authorities were all generated by counsel for the Applicant. Counsel’s rates are reasonable, as was the time spent.

8The fixing of costs is not a pure mathematical exercise of hours spent times hourly rate, I keep in mind that the objective in awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding.

9It was within the reasonable expectation of Mr. Durrant that significant costs were being generated on this motion and, if unsuccessful, he would be exposed to claims by the Applicant for either or both partial and substantial indemnity costs. In my view his reasonable expectation of the quantum of substantial indemnity costs as the unsuccessful party approximates the $20,858.33 which the Applicant now claims. I find that Costs in the sum of $19,000.00 are fair and reasonable.

10I fix substantial indemnity costs of the motion in the amount of $19,000.00 all inclusive of fees, disbursements and HST. Andrew Durrant shall pay this sum forthwith. These costs in their entirety are ordered enforceable by FRO as child support.