Court File and Parties

Court File No.: FS-02-665-03 Date: 2016-09-16 Superior Court of Justice - Ontario

Re: Eric David Eagleton, Applicant And: Anna Celeste Lombardi, Respondent

Before: The Honourable Justice D.A. Broad

Counsel: Birkin J. Culp, for the Applicant Gerry Smits, for the Respondent

Costs Endorsement

[1] The parties have been unable to settle the question of costs and have now delivered their submissions on costs.

[2] The applicant seeks substantial indemnity costs, or in the alternative, partial indemnity costs, for the entire period from May 22, 2015 to August 16, 2016 notwithstanding that, pursuant to my preliminary ruling, I accepted the applicant’s submission that the argument be limited to his motion originally returnable on April 29, 2016 to fix his support obligation to the table amount under the Federal Child Support Guidelines, and that the balance of the issues in the respondent’s motion to change be put over to a Settlement Conference/Trial Management conference on September 28, 2016. The substantial indemnity costs sought by the applicant totals $9750.68 and the partial indemnity costs sought in the alternative totals $7319.

[3] In my view, given that the argument on August 9, 2016 was restricted to the applicant’s motion to fix the child support to the table amount, it is not appropriate to include in the cost disposition all of the attendances of counsel from and after May 22, 2015. Moreover, the affidavit material is extensive and it is not possible to separate and distinguish the affidavit material and questioning necessary for the disposition of the applicant’s motion argued August 9, 2016 from the affidavit material and questioning which relate to the issues referenced in the respondent’s motion to change, whether to be dealt with on the paper record or at a trial on viva voce evidence.

[4] Sub-rule 24(10) of the Family Law Rules provides that “promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs” (emphasis added).

[5] In my view, the applicant was the successful party on the narrow issue which was argued on August 9, 2016 and is entitled to costs in respect of it pursuant to the presumption in r. 24(1). Given that the evidence on the motion which was argued is inextricably wound up in the overall evidence in relation to the respondent’s motion to change, I propose only to make a ruling on the applicant’s costs of the actual attendance for oral argument on August 9, 2016. The argument of the applicant’s motion took one and a half hours. Allowing an equal amount of time for preparation, the applicant is entitled to costs for oral argument, and preparation therefore, of three hours, or $750 plus HST thereon.

[6] To clarify, this cost disposition deals only with the actual attendance and preparation therefore on August 9, 2016. Costs referable to all attendances other than this, including, without limitation, preparation of all affidavits and attendance on questioning are reserved to the judge finally disposing of the motion to change, following a hearing or trial.

[7] The respondent argues that there should be no costs awarded because the applicant evidently accepted the respondent’s reasoning with respect to his obligation to pay for Alysha’s schooling by way of a final payment of $4020 on June 30, 2016. In my view this is a matter to be taken into consideration, if appropriate, by the judge finally disposing of the motion to change. This cost disposition deals only with the issue which was actually argued on August 9, 2016, namely the fixing of the applicant’s ongoing monthly child support obligation.

[8] It is therefore ordered that the respondent pay to the applicant costs in reference to the attendance on August 9, 2016 fixed in the sum of $750 plus HST in the sum of $97.50 for a total of $847.50.

[9] This amount is payable within 30 days hereof.

D. A. Broad J. Date: September 22, 2016