Court File and Parties

COURT FILE NO.: FS-16-20879-00 DATE: 20200311 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mendo Davidson, Applicant AND: Christine Mae Davidson, Respondent

BEFORE: Sanfilippo J.

COUNSEL: Sarah Boulby and Kenneth Fishman, for the Respondent

IN WRITING: March 11, 2020

Endorsement on Costs

[1] By Endorsement issued February 28, 2019, I refused to confirm the Provisional Variation Order made by the Honourable Justice Douglas Campbell of the Supreme Court of Nova Scotia (Family Division), pursuant to section 19(7)(c) of the Divorce Act, R.S.C. 1985, c. 3: Davidson v. Davidson, 2019 ONSC 6727.

[2] By Endorsement issued June 26, 2019, I granted the Respondent’s motion in writing, brought under Rule 14(b) of the Family Law Rules, O. Reg. 439/07, for an Order permitting her to make cost submissions in relation to the costs that she sustained in responding to this Variation Application. The Respondent then submitted her cost submissions in writing.

[3] By Endorsement issued November 25, 2019, I analysed the Respondent’s cost submissions, and set out the principles that would guide my determination of the Respondent’s claim for costs incurred in responding to this Variation Application: Davidson v. Davidson, 2019 ONSC 6807. In paragraph 11 of that Endorsement, I provided a process for the Nova Scotia Applicant to make written submissions on the issue of costs. Specifically, I remitted the matter back to the Nova Scotia Supreme Court in accordance with section 19(6) of the Divorce Act; I granted the Applicant ninety days to file with the Ontario Superior Court of Justice his written submissions on costs, and; I adjourned this matter for a period of ninety days.

[4] Paragraph 12 of my Endorsement of November 25, 2019, provided as follows:

In the event that the Applicant does not file with the Ontario Superior Court of Justice any written submission on the issue of costs within ninety (90) days from the date of this endorsement, I will then determine the Respondent’s claim for costs of this Application on the Respondent’s written submissions: Spring v. Spring, 2019 ONSC 367.

[5] The Applicant did not deliver any cost submissions. I will therefore determine the issue of costs on the Respondent’s written submissions, expanding the analysis, and applying the principles explained in my Endorsement of November 25, 2019.

[6] The Respondent was successful in her responding position that the Provisional Order not be confirmed. She is entitled to an award of costs: Family Law Rule 24(1); Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94.

[7] In terms of the assessment of the amount of costs, the Respondent sought costs in the amount of $22,138.48 on a full indemnity basis and in the amount of $16,964.21 on a partial indemnity basis.

[8] I have considered the Respondent’s submission that costs should be awarded on a full indemnity basis, but I decline to do so, finding instead that the factors are not present that would give rise to a cost award on an elevated scale. Rather, I find that an award of costs on a partial indemnity scale is, in the circumstances of this Application, consistent with the objective of fixing an amount of costs that is fair, just, reasonable and proportionate: Mattina v. Mattina, 2018 ONCA 867; Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56 (C.A.), at para. 26.

[9] In terms of the amount of costs, I have taken into consideration the factors set out in Family Law Rule 24(12). I am satisfied that the 72.9 hours of lawyer’s time incurred by the Respondent in responding to this Application was reasonable, in that this amount of time is not excessive: Basdeo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), at para. 7. The amount of time is supported by the source documents filed, and the hourly rates charged on a partial indemnity basis are appropriate for the years of Call of the lawyers. This produced a quantification of legal fees of $13,587.50 plus HST of $1,801.48 for a total of $15,658.98.

[10] The Respondent has established assessable disbursements in the amount of $1,155.07 for process server fees, courier fees, registered mail fees and copying fees plus HST of $150.16 for a total disbursement expense of $1,305.23. Together with legal fees and HST of $15,658.98, this produced a cost assessment of $16,964.21, all inclusive.

[11] In the exercise of my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, after consideration of the factors set out in Family Law Rule 24 and applicable case law, and mindful of the objective of determining a cost assessment that is fair, just, reasonable and proportionate, I award the Respondent costs of this Application, payable by the Applicant, fixed in the amount of $16,964.21, all inclusive.

Sanfilippo J. Date: March 11, 2020