Court File and Parties

Court File No.: FC-03-198-3 Date: 2017/03/07 Ontario Superior Court of Justice

BETWEEN:

Colin James Harkness Applicant – and – Christie Ann Leblanc Respondent

Counsel: Michèle Labrosse, Counsel for the Applicant Jane O’Neill, Counsel for the Respondent

Heard: October 18, 2016

Endorsement on Costs

Justice P.E. ROGER

[1] The Applicant claims that he was primarily successful on this motion and, as well, claims that his offers to settle are applicable, such that he should be entitled to costs. He has incurred amounts totaling $14,561.87 and seeks an order for costs in the amount of $11,649.50.

[2] On the other hand, the Respondent claims that she was required to bring this motion because of the continued refusals by the Applicant to address the issue of s. 7 expenses. She also claims that it would be unfair to allow costs to the Applicant when she was not entitled to costs in the province of Québec.

[3] The parties’ written submissions were thoroughly reviewed by this Court.

[4] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules (FLR). They include that the successful party is presumed to be entitled to costs, the importance and the complexity of the matter, whether there was any unreasonable behavior or any acts of bad faith, the scale of costs and any offer to settle, together with the hourly rates and the principle of proportionality and the reasonable expectations of the losing party.

[5] In this case, success was divided between the parties: I did not impute income of $40,000 to the Respondent but I did deal with child support and s. 7 expenses in a way that resulted in a net payment owing by the Respondent to the Applicant in the amount of $3,707.91.

[6] This matter was not complex, although probably time consuming for the parties, and this issue was important to the Respondent.

[7] I did not consider the behaviour of any of the parties to be relevant to the issue of costs of this motion.

[8] The Applicant’s offer of March 21, 2016, is not in compliance with the FLR and his offer of October 17, 2016 was served slightly late. However, I am nonetheless entitled to consider his offers as a factor in deciding costs. When I consider his offers, the inescapable conclusion when comparing his offers with the outcome is that the Applicant’s offers could have avoided this motion (despite their lack of strictly complying with the FLR). Consequently, I find, in these circumstances, that it is reasonable for the Respondent to be responsible for some portion of the Applicant’s legal costs.

[9] Considering all of the above and considering as well the limited means of the Respondent, proportionality and the amount of costs that the unsuccessful party would have reasonably expected to pay, I find that a reasonable amount for costs is the all-inclusive amount of $2,000, which I order the Respondent to pay to the Applicant within the next three months failing which, any unpaid amounts, still owing by June 10, 2017 are to be credited against child support by the FRO and enforced by set-off until fully paid.

Justice Pierre E. Roger Released: March 7, 2017