Superior Court of Justice - Ontario

Citation: Sprott v. Ohm, 2016 ONSC 7605

Court File No.: FS-13-386945

Date: 20161206

Re: Larisa Nancy Sprott, Applicant

And: Neal Cabot Ohm, Respondent

Before: Kiteley J.

Counsel: Harold Niman and Vanessa Amyot, for the Applicant Katherine Robinson, for the Respondent

Heard: in writing

ENDORSEMENT AS TO COSTS OF MOTIONS

[1] On June 9 I heard a motion and cross-motion dealing with the parenting schedule over the summer and I released an endorsement dated June 10 in which I reserved costs to the long motion. On September 1, 2016 I heard the long motion and on September 19 I issued the endorsement [2016 ONSC 5746] in which I established a schedule for submissions as to costs. Counsel agreed to modify that schedule and on that basis I received submissions from the Respondent dated October 20, from the Applicant dated October 27, reply submissions from the Respondent dated November 3 and reply submissions from the Applicant dated November 8, 2016.

Positions of the parties

[2] The Respondent’s position is that, in view of divided success, each party should bear their own costs of motions heard June 9 and September 1. The Applicant’s position is that success on the June 9 motions was divided and there should be no costs; but that she was largely successful on the long motions heard September 1 and the Respondent should be required to pay her costs on a full recovery basis in the amount of $39,703.96 or on a partial recovery basis in the amount of $26,204.61.

Success

[3] The parties agree that success was divided with respect to the June 9 motions and that there should be no order as to costs. I agree.

[4] With respect to the September 1 long motions, the Applicant was successful on the following key issues:

(a) on a temporary basis, the Respondent’s parenting time should include alternate 3 night weekends with 4 night weekends reserved for special occasions;

(b) on a temporary basis, the Respondent was required to pay child support for the two children without reduction based on his undue hardship claim.

[5] The Respondent was successful on the following key issues:

(a) the Applicant’s motion for an order that she be permitted to engage a child therapist and that the cost be shared equally was dismissed;

(b) the Respondent’s motion for a s. 30 assessment was granted;

(c) the Applicant’s motion for child support retroactive to June 15, 2015 was adjourned to the trial judge;

(d) the Applicant’s motion for ongoing s. 7 expenses was dismissed.

[6] I do not agree with submissions on behalf of the Applicant that she was “largely successful”. The rule 24(1) presumption of entitlement to costs does not apply.

[7] Instead, pursuant to rule 24(6), I must apportion costs “as appropriate”. Given that each party achieved significant success and lack of success, I find that the most appropriate apportionment is that each party pay her/his own costs of the September 1 long motions.

[8] Given that conclusion, I need not address other issues contained in the submissions but I will do so briefly.

[9] The written submissions refer to attempts to settle the outstanding issues, both through correspondence and offers to settle. The Applicant’s last offer was served at 1:46 on August 31, which was less than 24 hours before the commencement of the long motions on September 1. While that means that rule 18(14) does not apply, all offers may be taken into account pursuant to rule 18(16). Based on the correspondence and the offers, I am satisfied that both parties were making attempts to settle the motions.

[10] The Applicant changed counsel after the June 9 motion. She has not provided a bill of costs with respect to the June motions but the bill of costs with respect to the September motions is as follows: total fees $34,027.50; total disbursements $1,108.75; total fees and disbursements $35,136.25; HST $4,567.71 for a grand total of $39,703.96.

[11] In his reply submissions, the Respondent included a bill of costs from May 30, 2016 to October 19, 2016, a period which covered both motions, as follows: total fees $38,710.11; HST $5,032.31; total fees and HST $43,742.42; disbursements $1,705.06; HST on disbursements $221.66; total disbursements and HST $1,926.72; for a grand total of $45,890.80.

[12] The costs incurred by the Applicant for the September motions are similar to the costs incurred by the Respondent in both motions. Each party provided affidavits of non-parties in connection with the motions which increased the services involved. The issues were not complex but were important to both parties. However, in total, the bill of costs of the Applicant is not proportional to the issues reflected in the September motions.

[13] The Respondent has pointed out that the Applicant has a far greater ability to pay costs. Her form 13.1 relied on in relation to the child support motion demonstrates she has less income than the Respondent but substantially greater net worth than he does which likely led to the marriage contract. The Respondent has a substantial income but modest assets and he is now paying full table child support based on that income and he has a child of a prior relationship. The combination of the disproportionate costs incurred by the Applicant, her substantially greater net worth and his obligation to three children leads me to conclude that if I had awarded costs against him, those costs would have been minimal.

ORDER TO GO AS FOLLOWS:

[14] Neither party shall pay or recover costs of the motions heard June 9, 2016 and the motions heard September 1, 2016.

Kiteley J.

Date: December 6, 2016