Court File and Parties
COURT FILE NO.: FC-20-969 DATE: 2020/10/06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: James Robert Fraser, Applicant AND Yael Perez, Respondent
BEFORE: Mackinnon J.
COUNSEL: Kerry Fox, for the Applicant Liam Cardill, for the Respondent
HEARD: In Writing
Endorsement
[1] Both parties seek costs on a partial indemnity basis arising from a motion heard on September 2, 2020. The applicant claims $3,080.15. The respondent claims $3,407.49. The central issue was which school the children would attend. The applicant proposed a local public school. The respondent proposed the private school attended by the eldest child for the previous two years. The respondent succeeded on this issue. The secondary issue was how the ensuing private school fees would be paid for the coming year. I ordered that for the coming year the school fees would be paid by the respondent.
[2] Each party claims success on this second issue. The respondent asked in her Notice of Motion that the fees be shared by the parents in proportion to income, or in the alternative that she alone be responsible for them. She claims success in that her alternative relief was ordered by the court. The applicant claims divided success on the basis that the respondent was denied an order for the proportionate sharing of the school fees.
[3] The applicant’s claim for partial indemnity costs is dismissed.
[4] In the context of this motion the fact that the respondent obtained her alternative relief does not equate to divided success on the applicant’s part. The applicant also delivered a Notice of Motion setting out the relief he was claiming and asking that the respondent’s motion be dismissed outright. He did not obtain any of the relief he sought.
[5] The applicant goes on to submit that success on her alternative claim should not insulate the respondent from the cost consequences of failing to achieve an order on her first head of relief with respect to school fees because she did not put her alternative relief in the form of an offer. The fact remains that the respondent did obtain her alternative relief. The applicant had the same opportunity as did the respondent to take alternative positions in his Notice of Motion but did not do so. He also had the option to offer to settle in accordance with her alternative claim in the event the choice of school went her way. By doing so he could have protected his position on that issue in relation to costs.
[6] Neither party made a formal offer to settle.
[7] The payment of school fees was very much a minor issue in this case. The primary issue which occupied most of the parents’ efforts and court time was the choice of school for the children. The applicant’s position on the amount and payment of the school fees was intertwined with his overall opposition to the private school. It was not an issue that added to his time and expense in opposing the respondent’s choice of school. He devoted 7 paragraphs of his 135 paragraph affidavit to the issue of school fees. His position was that the parents could not afford the fees and that it was premature for the court to decide whether they could, before the amount of child and spousal support he would be receiving had been decided. I rejected these arguments.
[8] The applicant also based his claim for partial indemnity costs on his assertion that his position on the choice of school issue was reasonable and, on the fact, that his income is significantly less than the respondent’s. Even if accurate the first assertion does not rebut the presumption that the successful party is entitled to costs. His second assertion can and will be addressed when he pursues his other claims for child and spousal support, and property division.
[9] As the successful party on both issues the mother is entitled to costs. The amount claimed is clearly reasonable and proportionate to the issues. I fix her costs payable by the applicant in the amount claimed of $3,407.49.
J. Mackinnon
Date: October 6, 2020
COURT FILE NO.: FC-20-969 DATE: 2020/10/06
ONTARIO SUPERIOR COURT OF JUSTICE
RE: James Robert Fraser, Applicant AND Yael Perez, Respondent
BEFORE: Mackinnon J.
COUNSEL: Kerry Fox, for the Applicant Liam Cardill, for the Respondent
COSTS ENDORSEMENT
Mackinnon J.
Released: October 6, 2020