Court File and Parties
Superior Court of Justice – Ontario
Family Court
Re: Marc-Andre Bordeleau, applicant
And: Leah Nicole Bacon, respondent
Before: Vogelsang J.
Counsel: Robert A. Haas for the applicant Leah Bacon in person
Heard: written submissions filed
Endorsement on costs
[1]
Endorsement on Costs
In my brief handwritten reasons after hearing this motion on July 21^st^, I commenced:
This is a close case. The history is tortuous and the volume of material already filed overwhelming. Each party excoriates the other and makes accusations of obstruction of, variously, access and disclosure. Each decries the other’s unfortunate pattern of behaviour and “clear history of default.”
[2]
Analysis
The costs submissions continue the general tone of contention which afflicts this litigation. Each side complains about unreasonable behaviour on the part of the opponent. Looking simply at the motion and cross-motion, Mr. Bordeleau achieved success. He was able to obtain leave to proceed after the earlier proscription by Gorman J., and I dismissed Ms. Bacon’s claim for a payment into court of $7,500 as security for costs.
3Mr. Bordeleau’s success presumptively entitles him to costs: rule 24(1) of the Family Law Rules, O. Reg. 114/99. The quantum to be paid, however, must reflect the factors in rule 24(11), viewed flexibly: C.A.M. v. D.M. (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.).
4I am required to step back and make an assessment of a sensible and fair result consistent with what the more unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, not just an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). Indeed, proportionality must always be kept in mind when considering any costs issue: Gale v. Gale, 2006 CarswellOnt 6328 (Div. Ct.).
[5]
Disposition
To my mind, a balanced, fair costs award to Mr. Bordeleau to reflect his success is $8,800 inclusive of recoverable disbursements and H.S.T. While that sum may seem high for a simple motion – albeit one with considerable affidavit evidence – I am awarding costs, as well, reserved to me by previous motion judges.
"Justice Henry Vogelsang"
Justice Henry Vogelsang
Date: November 2, 2017