Court File and Parties
COURT FILE NO.: FS–15–401888
DATE: 20190103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAY VALLEY Applicant
– and –
JUSTIN HAY Respondent
Kay Valley, on her own behalf
Kevin Power, for the Respondent[^1]
Karen Lindsay-Skynner, on behalf of the minor children SHV and CHV
HEARD: October 15 – 19th, 2018
P.J. Monahan J.
REASONS ON COSTS
[1] On October 31, 2018, following a five-day trial, I delivered reasons resolving issues in connection with the parties’ divorce, including custody and access of their two children, child and spousal support, and claims respecting property and equalization. The parties have subsequently made written submissions in respect of costs.
[2] The Applicant argues that if costs are to be awarded, it should be in her favour or, alternatively, the parties should bear their own legal costs. She submits that success at trial was divided but argues that she was slightly more successful than the Respondent, in that she secured an indefinite entitlement to spousal support and a child support award which was more in line with her final pre-trial Offer to Settle. She acknowledges that with respect to parenting issues, the Respondent may have been marginally more successful based on his adoption of the position of the Office of the Children’s Lawyer (the “OCL”). She nevertheless maintains that her position was entirely reasonable and it would be inappropriate to order costs against her based on the outcome on the parenting issues. The Applicant also maintains that the Respondent took unreasonable positions, such as denying the Applicant’s entitlement to spousal support and seeking to have the Applicant move her residence closer to him (although the Respondent’s position in this regard was later modified.)
[3] Although the Applicant represented herself at trial, she had earlier retained counsel on the basis of a legal aid certificate. As will be discussed further below, that counsel has submitted a Bill of Costs and detailed dockets covering the period November 8, 2017 to November 19, 2018, indicating that counsel spent a total of 69.90 hours over that period, for total fees and disbursements of $20,547.05. The Applicant represented herself at trial and spent a total of 264.7 hours in preparation and attending at the trial itself. She is seeking to be awarded costs for her time at a rate of $100 per hour, in accordance with the decision of McMurter v. McMurter,[^2] and is claiming $26,470 for her time.
[4] The Respondent argues that he was successful in relation to his claims on parenting issues, on equalization and on property. With respect to support issues, the Respondent acknowledges that the Applicant was successful in obtaining an award of periodic spousal support, as well as a higher amount for child support than he had offered. However he argues that the Applicant behaved unreasonably and, in some instances, in bad faith, and that she should be deprived of all of her own costs and ordered to pay all or part of the Respondent’s costs.
[5] The Respondent represented himself at trial, other than in respect of the opening statements, where he was assisted by counsel. However he had retained counsel throughout these proceedings and has submitted a Bill of Costs which indicates that his actual costs were $68,182.29, inclusive of HST and disbursements, while his costs on a partial indemnity basis were $47,872.62. Given that success was divided at trial, he seeks costs on a partial indemnity basis fixed in the sum of $25,000.
Legal Framework Governing Costs Awards in Family Law Cases
[6] It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants.[^3] Moreover, as the Court of Appeal emphasized recently in Mattina v. Mattina,[^4] a fourth fundamental purpose of costs awards in family law proceedings is to ensure that cases are dealt with justly, in accordance with Rule 2(2