CITATION: D.M. v. C.W., 2017 ONSC 7589
COURT FILE NO.: 16-034
DATE: 20171219
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.M., Applicant
v.
C.W., Respondent
BEFORE: The Honourable Mr. Justice C.J. Conlan
COUNSEL: Mr. A. Wilford, for the Applicant
Ms. E. Samli, for the Respondent
ENDORSEMENT ON COSTS
Conlan J.
I. INTRODUCTION
[1] In November 2017, this Court heard a five-day trial in Owen Sound on the narrow issue of whether the mother, C.W., and the child, a two year-old boy, ought to be permitted to move from the Miller Lake area, located between Wiarton and Tobermory, Northern Bruce Peninsula, to Downingtown, Pennsylvania, United States of America.
[2] Notwithstanding that the report of the clinician working for the Office of the Children’s Lawyer supported the proposed relocation, in Reasons for Judgment reported at 2017 ONSC 7070, this Court held that the move shall not occur as it would not be in the best interests of the child.
[3] The parties have not been able to resolve the issue of costs, and thus, written submissions have been filed and reviewed by this Court.
[4] The successful party, the father, D,M., seeks costs on a substantial indemnity basis.
[5] I agree with counsel for C.W. that there are arithmetic errors in the father’s counsel’s Bill of Costs. For example, the substantial indemnity fees are shown as higher than the actual full recovery fees, which makes no sense.
[6] This Court is grateful to Ms. Samli for filing a corrected version of the father’s Bill of Costs. That document, which I accept, shows that D.M.’s substantial indemnity costs, inclusive of fees, disbursements and tax, are approximately $33,000.00, while his total partial indemnity costs are about $23,000.00.
[7] C.W. does not agree that the father should receive any costs, however. Her position is that there ought to be no costs awarded to either side.
II. ANALYSIS
[8] I do not agree with the mother that D.M. ought not to receive any costs. He was successful and is presumed to be entitled to some costs. Nothing here would displace that presumption. For example, this is not a case of divided success.
[9] The only question is how much and on what scale.
[10] Quantum of costs is discretionary. The overriding objective is to arrive at a figure that is fair, just and reasonable in all of the circumstances including the prudent expectations of the losing side, C.W.
[11] Modern costs awards are designed to partially indemnify successful parties, encourage settlement and discourage and sanction, where appropriate, unreasonable or bad conduct.
[12] In setting the amount of costs, this Court must consider Rule 24 of the Family Law Rules, and in particular, the factors outlined in sub-rule 24(11).
[13] In looking at those factors, I find the following. The mobility issue was extremely important for both sides, not very complex (compared to some mobility cases) and not particularly difficult to decide.
[14] I find nothing unreasonable about the conduct of either parent during the litigation. The mother can hardly be blamed for sticking to her position given the opinions of the clinician.
[15] An hourly rate for Mr. Wilford, counsel for the father, of $350.00 is more than fair. He has been in practice since 1990.
[16] With a few exceptions, I see nothing unreasonable about the time spent by the father’s legal representatives or the disbursements charged. As for the few exceptions, I agree with Ms. Samli that, although costs may be awarded for an entire “case” [sub-rule 24(1)], here, given that this Court is deciding costs only with regard to the narrow issue stated above that was ordered to trial by another Justice, and given that the proceeding involves other issues as of yet unresolved, any time spent for non-trial related work ought to be disregarded – about $988.00. Next, I agree with Ms. Samli that $100.00, rather than $125.00, is a more reasonable hourly rate for the legal assistant who worked on the father’s file; that produces a reduction in fees of approximately $1000.00. Finally, I agree with Ms. Samli that the rates charged by the father’s counsel for photocopies (40 cents per page) and faxes ($1.50 per page) are a little rich for these circumstances; I will exercise my discretion to reduce the disbursements from the $3341.24 being claimed to $2800.00, inclusive of tax.
[17] I decline to accede to Ms. Samli’s final suggestion of reducing the time charged by the father’s counsel in relation to the affidavits filed at trial. The time spent was reasonable. The affidavits were very helpful to this Court.
[18] Thus far, we have costs due to the father of either $20,579.23 ($23,108.47 less the deductions noted immediately above), on a partial indemnity basis, or $30,463.06 ($32,992.30 less the deductions noted immediately above), on a substantial indemnity scale, both numbers being all-inclusive. Of course, either award is still subject to an overall assessment of what is fair.
[19] I disagree with the father’s counsel that substantial indemnity recovery is appropriate here. I do not share the father’s view that C.W. has acted frivolously, or in a vexatious manner, or that she wasted the Court’s time, or that she had no hope of success at trial, or that her conduct in the proceeding is deserving of some form of punishment.
[20] I think that C.W.’s position at trial was weak, but that is not the same thing as being something that would support enhanced recovery of costs by the other side.
[21] I must also keep in mind that C.W., although not as destitute as she claimed to be during the trial, is certainly not wealthy. I am advised that her lawyer’s retainer was legally-aided, at least to some degree.
[22] Thus, I have decided that a discounted partial indemnity costs figure is appropriate in all of the circumstances. The $20,579.23 will therefore be reduced to $15,000.00, all-in.
III. CONCLUSION
[23] C.W. shall pay costs to D.M. in the total amount of $15,000.00. That is the Order of this Court.
Conlan, J.
DATE: December 19, 2017
COURT FILE NO.: 16-034
DATE: 20171219
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.M., Applicant
v.
C.W., Respondent
BEFORE: The Honourable Mr. Justice C.J. Conlan
COUNSEL: Mr. A. Wilford, for the Applicant
Ms. E. Samli, for the Respondent
ENDORSEMENT ON COSTS
CONLAN, J.
DATE: December 19, 2017