Court File and Parties
COURT FILE NO.: 619/15 APPLICATION HEARD: 2016 0711
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leslie Ann Kuenzig, Applicant AND: Wade Llewellyn Topp, Respondent
BEFORE: MILLER J.
COUNSEL: I. Brown, for the Applicant D. Camelletti, for the Respondent
APPLICATION HEARD: July 11, 2016
Costs Endorsement
[1] Leslie Kuenzig brought an Application for a retroactive adjustment of child support payable by Wade Topp for James Kenneth Kuenzig, born June 23, 1998, back to 2001. The parties agreed that the order for child support should terminate as at June 2016.
[2] I did not find that the retroactive award should be made back to 2001 but that it would be made from November 2011 forward. I ordered that Mr. Topp pay arrears of child support of $68,588.98 less any payments made by him to FRO from November 1, 2011 at a rate not less than $1,000 per month, beginning August 1, 2016, to continue until the balance is paid.
[3] A Support Deduction Order is to issue.
[4] The parties were given an opportunity to make written submissions as to costs.
[5] Ms Kuenzig seeks costs of $7,000, approximately half of the amount of work undertaken ($13,910.30). She submits that the fact that the work was done pro bono should not be a bar to her lawyer receiving reasonable costs. As noted by the Court of Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 at paragraph 35:
…allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the system without fear of the sanction of an award of costs; and (2) it promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. Because the potential merit of the case will already factor into whether a lawyer agrees to act pro bono, there is no anticipation that the potential for costs awards will cause lawyers to agree to act only in cases where they anticipate a costs award.
[6] Mr. Topp takes a primary position that each party should bear their own costs as while Ms Kuenzig was successful in achieving a retroactive award she was not successful in arguing that the retroactive award should go back to 2001. In the alternative he submits that he was successful on the principal issue argued – the duration of the retroactive award – and so should be awarded costs of the long motion only, on a partial indemnity basis $4,614.63, or in the further alternative, one third of those costs at $1,522.83.
[7] In accordance with Rule 24 (1) of the Family Law Rules there is a presumption that the successful party is entitled to costs. Rule 24 (11) provides:
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.
[8] Rule 24 (6) provides that if success in a step in a case is divided, the court may apportion costs as appropriate.
[9] Mr. Topp submits that the Ontario Superior Court of Justice decision in Kereluk v. Kereluk [2004] O.J. No. 4934 is analogous.
[10] I find that Ms Kuenzig was primarily successful on the Application. Her costs award shall take into account that she was unsuccessful in having child support arrears awarded back to 2001.
[11] I have considered as well Mr. Topp’s submission that Ms Kuenzig should not receive costs for any work done prior to June 7 as costs are to be dealt with at each step of the proceeding. While I agree that costs specific to preparation for and attendance at a conference should not form part of the costs award if not dealt with at those stages of the proceedings, it is also clear that Mr. Topp had not, at those steps in the proceedings, conceded that retroactive support should be ordered back to November 2011. I find therefore that it is reasonable that consideration be given to Ms Kuenzig’s costs of the Application as a whole, leaving out the costs specific to conferences.
[12] Having reviewed the Bill of Costs in order to do that, and as well, taking into account the mixed success on the argument made at Court, I find that the costs sought by Ms Kuenzig are more than reasonable. Mr. Topp is ordered to pay Ms Kuenzig’s costs of the Application, fixed at $7,000, within thirty days of this order.
[13] As the costs award is wholly related to the issue of child support, it is enforceable by the Family Responsibility Office.