Court File and Parties

Court File No.: 50718-15 Date: 2017/01/16 Superior Court of Justice - Ontario

Re: Jennifer Ann Scott, Applicant And: Cory David Jantzi, Respondent

Before: The Honourable Justice D. A. Broad

Counsel: Travis Weagant, for the Applicant Respondent – Self Represented

Costs Endorsement

[1] The parties have been unable to settle the issue of costs and have now delivered their costs submissions.

Positions of the Parties

[2] The applicant submits that she was partially successful in respect of her motion to strike the respondent’s pleadings, or alternatively, to set the only issue remaining, being the applicant’s entitlement to child support, for trial pursuant to r. 16(7) of the Family Law Rules, by obtaining the alternate relief, and was successful in opposing the respondent’s motion for production of both parties’ common law partners’ income information and for involvement of the Office of the Children’s Lawyer. She seeks partial indemnity costs in respect of her motion in the sum of $2,272.98, being 70% of her actual costs and substantial indemnity costs in respect of the respondent’s motion in the amount of $1,180.11, being 90% of her actual costs. The total amount which the applicant seeks is the sum of $3,453.09.

[3] The respondent submits that the applicant’s motion was unnecessary as he was not unlawfully withholding financial disclosure. He says that he was never notified of any outstanding documents prior to the filing of the motion and that he was unaware of the provision of the rules requiring payment of costs awards within 30 days. He says that his motion for involvement of the Office of the Children’s Lawyer was made in good faith based upon information provided by Family and Children’s Services. He says that he incurred lost time in responding to the applicant’s motion at the rate of $95.00 per hour for a total cost of $2,565.00 and seeks partial indemnification of 75% of those costs in the amount of $1,923.75.

Guiding Principles

[4] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.), (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para. 42).

[5] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of r. 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[6] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[7] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[8] In my view, the applicant was the successful party in respect of these motions, however, she was only partially successful on her own motion. She was not successful in obtaining an order striking the respondent’s pleadings, however, the court did impose a timetable for the completion of financial disclosure and for the payment of the outstanding costs awards, failing which the applicant would be entitled to move ex parte to strike the respondent’s pleadings. She was successful in obtaining an order directing a trial to decide the amount of spousal support.

[9] It is noted that the issue of the completion of financial disclosure by the respondent was complicated by the fact that the affidavit which he served on counsel for the applicant was different than the affidavit filed with the court. How that happened was left unexplained.

[10] The respondent was unsuccessful on his motion. Once it was explained to him that involvement of the Office of the Children’s Lawyer was inappropriate, given that custody and access had been resolved, he withdrew that aspect of his motion. It was clear that it was inappropriate to order financial disclosure of the parties’ respective current partners as that issue had been addressed earlier in the proceeding and it would unduly complicate the matter.

[11] In my view, the applicant should be entitled to partial indemnity costs in respect of both motions. No issue was taken by the respondent with respect to the hourly rates utilized by applicant’s counsel nor the time spent.

[12] It is ordered that the respondent pay to the applicant partial indemnity costs in respect of both motions fixed in the sum of $2,250.00, inclusive of fees, disbursement and HST. This amount shall be paid within 45 days of the date hereof.

D. A. Broad Date: January 16, 2017