CITATION: Bruce v. Giroux, 2016 ONSC 610
COURT FILE NO.: FC-13-1041-1
DATE: 2016/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN STUART BRUCE
Applicant
– and –
LOUISE GIROUX
Respondent
Michel Rappaport, for the Applicant
Caspar van Baal, for the Respondent
HEARD: By Written Submissions
DECISION ON COSTS
kANE j.
[1] The applicant Father seeks costs on his motion in which he sought:
(a) Appointment of the Office of the Children’s Lawyer “OCL”;
(b) An order the child spend an equal amount of time with each parent; or
(c) In the alternative, an order interpreting the parties’ separation agreement to include the child spending the weekend and one overnight with the Father in week one, plus one additional overnight and a two hour longer evening with the Father in week two.
[2] The Mother opposed the Father’s motion. The Mother served an offer of settlement requiring continuation of the status quo but offering two additional hours one evening in week two.
[3] The motion decision:
(a) Did not grant interim week about access;
(b) Granted the OCL appointment relief; and
(c) Increased the existing time with the Father to include two consecutive overnights in week two.
[4] The Father’s Bill of Costs lists actual, substantial and partial indemnity costs but does not state which of the three is being requested leaving it to the court to determine what costs are reasonable.
[5] The Mother does not seek costs and submits no costs should be awarded.
Summary of Factors As to Father’s Cost Claim
Lawyers Involved ‒ 1
Year of Call – 2008
Full Hourly Rate – $195
Hours Claimed – 29
Total of Actual Fees, Disbursements and Tax – $6,445
In comparison, the Mother’s draft Bill of Costs states:
(a) Year of Call ‒ 1990
(b) Full Hourly Rate ‒ $325
(c) Hours Expended ‒ 62
(d) Total Fees and Disbursements ‒ $20,144.
[6] The following additional factors and conclusions form the basis of this decision.
Nature of Claims
[7] The separation agreement signed two years before provides for:
(a) Joint custody; and
(b) The regular time of the child with the Father is to be generous, including without limitation, every second weekend consisting of three overnights, plus one additional mid-week overnight and one additional dinner together for two hours.
[8] The Father wanted more time with the child and suggested a four party meeting to address the issue. The Mother did not accept to meet and negotiate resolution of the issue. Her offer of settlement in response to the Father’s motion was an additional two hours once every two weeks.
[9] The Mother did not allege the Father was an improper or incapable parent. Her response to increasing time with the Father given the wording of the separation agreement was unreasonable.
Success
[10] As to be expected on these facts, the court did not on an interim motion change the limited time the Father had to week about access.
[11] The Father however was successful in obtaining increased time on an interim basis. He was also successful in the court requesting the appointment of the OCL.
[12] The Mother was unsuccessful on the motion beyond the court not granting week about access.
[13] Costs should follow the Father’s success on this motion.
Complexity
[14] Complexity is not a factor on this motion.
Importance
[15] The issues were important to each party.
Settlement Offers
[16] The motion outcome exceeded the relief contained in the Mother’s offer of settlement which therefore is not material as to costs.
Conduct Lengthening or Shortening Proceeding
[17] This is not a material factor.
Improper, Vexatious or Mistaken Conduct
[18] This is not a material factor.
Appropriate Scale of Costs
[19] To the extent such cost scale remains an appropriate consideration pursuant to Serra v. Serra, 2009 ONCA 395, and Costa v. Perkins, 2012 ONSC 3165 (Ont. Div. Ct.); the court considers that partial indemnity is the appropriate cost scale level on this motion.
Time and Quantum Claimed
[20] The docketed time by counsel for the Mother demonstrates the reasonableness of time docketed by the Father’s counsel.
[21] The full and resulting partial indemnity hourly rate listed by counsel for the Father is appropriate.
Conclusion
[22] Costs are awarded to the Father given his level of success pursuant to the presumption in R. 24 (1).
[23] The applicant Father is awarded costs in the total amount of $3,500, inclusive of tax and disbursements.
[24] The Mother is to pay such costs within 60 days from this decision date.
Kane J.
Released: January 26, 2016
CITATION: Bruce v. Giroux, 2016 ONSC 610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN STUART BRUCE
Applicant
– and –
LOUISE GIROUX
Respondent
DECISION ON COSTS
Kane J.
Released: January 26, 2016