Court File and Parties
COURT FILE NO.: 3812/17
DATE: 20180410
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIINA JENNIFER LANE Applicant
– and –
DAVID GLENN LANE Respondent
COUNSEL: Shadrach R. McCooeye, for the Applicant
HEARD: Written submissions
Decision on Costs
GAREAU J.
[1] Before the court is the issue of costs regarding the application brought by Tiina Jennifer Lane.
[2] On April 3, 2018, I released an endorsement disposing of the application on a final basis.
[3] I invited counsel for the applicant to make written submissions as to costs. I have received and reviewed those submissions.
[4] In the context of Family Law cases, costs are governed by Rule 24 of the Family Law Rules. Pursuant to Rule 24(1) there is a presumption that a successful party is entitled to costs. This is to be tempered by the overall principle in law that costs are ultimately in the discretion of the court. Rule 18 of the Family Law Rules requires the court to consider offers to settle made by the parties in determining whether it is appropriate to awards costs in a proceeding.
[5] In particular, Rules 18(14), (15) and (16) read as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a motion, it is made at least one day before the motion date.
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
- The offer does not expire and is not withdrawn before the hearing starts.
- The offer is not accepted.
- The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
COSTS CONSEQUENCES – BURDEN OF PROOF
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
COSTS – DISCRETION OF COURT
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[6] If the court concludes that an order for costs is appropriate, in assessing the quantum of costs, the court is directed by Rule 24(11) to consider the following factors in making that assessment:
(a) the importance, complexity or difficulty of the issues; (b) the reasonableness or unreasonableness of each party’s behaviour in the case; (c) the lawyer’s rates; (d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument and preparation and signature of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.
[7] It is clear that the applicant enjoyed the preponderance of success in the application, and, with the exception of her claim for section 7 expenses for child support, obtained the order which she was seeking.
[8] It is also clear that the applicant made genuine attempts to resolve the matter short of a hearing on reasonable terms as indicated in her offer to settle dated November 22, 2017.
[9] The applicant should receive costs. As to the quantum of costs, the applicant, through her counsel, is requesting that costs be fixed at $5,000.00, all in. Attached to the written submissions of the applicant are two solicitor and client accounts which have been rendered by the solicitor for the applicant to the applicant. These two accounts total $7,825.05, inclusive of HST and disbursements. Mr. Shadrach McCooeye has charged his time out at $200.00 per hour, which is reasonable based on the nature of the application and his level of experience. A review of the items charged does not reveal any significant difficulties or significant adjustments that are required to be made.
[10] Considering all the circumstances of this case and the principles applicable with respect to costs, including Rules 18 and 24 of the Family Law Rules, it is appropriate that the respondent, David Glenn Lane, pay costs to the applicant, Tiina Jennifer Lane, which I fix at $5,000.00, inclusive of HST and disbursements. These costs are payable forthwith.
Gareau J.
Released: April 10, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIINA JENNIFER LANE
- and –
DAVID GLENN LANE
DECISION ON COSTS
Gareau J.
Released: April 10, 2018