Superior Court of Justice - Ontario

Citation: Gubbels v. Gubbels, 2016 ONSC 7065

Court File No.: FD1250/09

Date: 2016/11/16

Re: Paula June Gubbels, Applicant

And: Carl Hubertus Gubbels, Respondent

Before: Madam Justice L.C. Leitch

Counsel: Paula June Gubbels, Self-represented William R. Clayton, for the Respondent

Heard: Written submissions received August 25, September 16, and 19, 2016

Costs Endorsement

[1] Mr. Gubbels brought a Motion to Change seeking an Order, reducing his spousal support obligation to Mrs. Gubbels from what was ordered November 22, 2012 by Templeton J. following a trial. Mr. Gubbels was successful on his Motion and spousal support was reduced from $900.00 per month to $725.00 per month, commencing January 1, 2016.

[2] Mr. Clayton, counsel for Mr. Gubbels, has filed a Bill of Costs which reveals that full indemnity fees and disbursements inclusive of H.S.T. amounts to $30,821.83. The partial indemnity fees and disbursement inclusive of H.S.T. are $21,191.31. He seeks a cost order on an all-inclusive basis of $18,000.00.

[3] In addition, Mr Clayton has also filed a separate account in the amount of $3,608.35 from Harrison Pensa, who were counsel of record for the case conference, settlement conference and trial management conference.

[4] In her submissions on costs, Mrs. Gubbels asked that costs be borne by each individual.

[5] Mr. Clayton on behalf of Mr. Gubbels references Rule 24(11) which outlines the factors a court should consider in fixing costs.

[6] I agree with Mr. Clayton’s submission on behalf of Mr. Gubbels that he was the successful party at trial. I also agree that his offer to settle demonstrated a sincere attempt to resolve matters with Mrs. Gubbels. I note also that he does not dispute that he is responsible for the arrears which have accrued under the November 22, 2012 order.

[7] I further agree with Mr. Clayton’s submission on behalf of Mr. Gubbels that the issue before the court was a novel one and the trial proceeded relatively expeditiously over two days.

[8] I conclude that Mr. Gubbels is entitled to costs, notwithstanding the fact that Mrs. Gubbels is impecunious.

[9] However, Mrs. Gubbels’ financial circumstances must be taken into account in fixing the quantum of costs awarded to Mr. Gubbels.

[10] I have considered the parties’ respective financial circumstances, the extent of the variation in spousal support, the period of retroactivity of the variation in spousal support, and the quantum of arrears in determining the appropriate quantum of costs to be awarded Mr. Gubbels. I have also taken into account the nature of the issue in dispute, the nature of the evidence adduced at the hearing, the materials filed on the motion, the fact that the issue was a novel one and that neither party acted unreasonably.

[11] I conclude that in these circumstances a cost order in favour of Mr. Gubbels in the amount of $5,000.00 all-inclusive is appropriate. This amount shall reduce the arrears which were outstanding as of March 31, 2016. An order may issue in accordance with this endorsement.

Justice L. C. Leitch

Date: November 16, 2016