Court File and Parties

COURT FILE NO.: FD773/15

DATE: September 13, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Cortnie Krystine Wauthier, applicant

AND:

Ryan Bruce McAuliff, respondent

BEFORE: MITROW J.

COUNSEL: Andrea C. Cooley for the applicant

Ryan Bruce McAuliff in person

HEARD: written submissions received

ENDORSEMENT on costs

[1] On July 2, 2019, I made a final order permitting the applicant to relocate from London, Ontario to Woodstock, Ontario with the parties’ two young children.

[2] All other parenting issues had been resolved earlier pursuant to a final consent order, with the exception of the applicant’s request to move to Woodstock. Pursuant to the final order, primary care of the children was to the applicant.

[3] The applicant was successful on the issue of mobility, being the sole remaining parenting issue and, as such, she is presumptively entitled to costs.

[4] The parties were given until July 31, 2019 to file written costs submissions with the trial coordinator. The applicant filed written costs submissions but the respondent did not.

[5] The applicant seeks “substantial indemnity” costs of $8857.71 The phrase “substantial indemnity” refers to a scale of costs in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which is not found in the Family Law Rules, O. Reg. 114/99 and which does not inform the analysis to be undertaken when quantifying costs under the Family Law Rules: see, for example, Beaver v. Hill, 2018 ONCA 840, at para. 9.

[6] I have considered the factors in r. 24(12). Both parties were reasonable in dealing with the remaining issue via affidavit, with cross-examination at trial on the affidavits. The respondent did cross-examine, while the applicant did not. The trial was brief.

[7] The hourly rate for applicant’s counsel of $280 is reasonable, as are the disbursements. I have considered the applicant’s two offers. The second offer, a letter, is signed only by the applicant’s counsel and, therefore, does not comply with r. 18(4). I am unable to find that the costs consequences of r. 18(14) are engaged, but I can consider both offers under r. 18(16).

[8] Although the respondent was unsuccessful, his refusal to agree to the applicant’s proposed move should not be characterized as “unreasonable” as submitted by the applicant. The respondent did have an argument to present on mobility and he had consented to the final order on all other issues. Litigants should be able to advance a position at trial without being characterized as unreasonable just because they are unsuccessful. Being unsuccessful does not equate necessarily to being unreasonable.

[9] Reasonableness in awarding costs is a guiding principle and the quantum of costs is not determined by a mathematical exercise, but instead must reflect what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the successful party’s actual costs: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 52.

[10] I find that the sum of $3,500 inclusive of disbursements and HST is reasonable, and the respondent shall pay this amount to the applicant within 60 days.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: September 13, 2019