Court File and Parties
COURT FILE NO.: 574/16 DATE: 20170512 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROBERT BRADLEY HILL, Applicant - and - SARAH GLENNIE HILL, Respondent
BEFORE: EMERY J.
COUNSEL: Grace Sun, for the Applicant Bruce A. Gray, for the Respondent
HEARD: In writing
Costs Endorsement
[1] Each part has now filed costs submissions on the motions heard on March 13, 2017. Mr. Hill seeks costs on a substantial indemnity basis in the amount of $8,315 for fees, $257.25 for disbursements and HST for a total of $9,686.87. He claims entitlement to these costs because he submits the results of those motions closely mirror his offer to settle. He suggests those costs can be paid from the share of Ms. Hill’s proceeds of sale when the matrimonial home is sold.
[2] Ms. Hill takes a different approach. She submits that although the results were somewhat mixed, she should be awarded costs as she enjoyed greater success on the motions. Ms. Hill seeks costs based on fees of $4,975 plus HST totalling $5,621.29 on a partial indemnity basis, or $6,965 for fees and HST totalling $7,870.45 for costs on a substantial indemnity scale. She makes the submission that she had no choice but to bring her motion, and that the result relating to child based issues was decided in accordance with the terms an offer she had made before the motion was heard.
Principles
[3] When it comes to assessing the appropriate amount for costs, the authorities have mandated certain fundamental principles for the court to consider when making a costs award.
[4] First, Fong v. Chan (1999), 46 O.R. (3d) 330 (Ont. C.A.) sets out the three fundamental objectives that the modern costs rules are designed to serve:
a. To partially indemnify successful litigants for the cost of litigation; b. To encourage settlement; and c. To discourage and sanction inappropriate behaviour by litigants.
[5] Second, it is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what amount the unsuccessful party could reasonably expect to pay for those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, [2004] 71 O.R. (3rd) 291.
[6] I am also guided by Family Law Rule 18 when an offer to settle has been served, for the purpose of determining the successful party and therefore the party presumptively entitled to costs under Family Law Rule 24(1), and as to the proper basis for recovery. If a party is considered the successful party on the motion and has achieved a result on the motion equal to or more favourable than his or her offer, it could make the difference between receiving an award of costs at a lower level, and making a full recovery of costs.
[7] Mr. Hill achieved success on obtaining an order containing terms consistent with his offer to settle. However, the court declined to grant summary judgment on issues of custody and access for Paula Jamieson, or even shared custody on a temporary basis. This alone takes his offer out of contention for full recovery of his costs under Family Law Rule 18(14).
[8] The offer served by Ms. Hill was not as favourable as the result on her motion, her position on Mr. Hill’s motion with respect to his access to Paula Jamieson, or on her issue of exclusive possession or Mr. Hill’s motion to list the matrimonial home for sale.
[9] I find in all the circumstances, including the offers to settle, that Mr. Hill was the successful party. As such, he is entitled to the costs of the motion fixed in the amount of $6,500, all inclusive.
[10] This amount is fair and reasonable as it is approximately what Ms. Hill was seeking as a mid-range for costs. It is also an amount that reflects the objectives of the modern objectives for awarding costs in Fong v. Chan.
[11] The sum of $6,500 awarded to Mr. Hill may be paid out of Ms. Hill’s share of the proceeds of sale when the matrimonial home is sold, or if she purchases his interest, at the time of closing.