Court File and Parties

COURT FILE NO.: 21-15 DATE: February 19, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Giroux and Cadham BETWEEN: Jessica Giroux, Applicant and Larry Cadham, Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Cynthia Squire for the Applicant Jessica Margeit Pineda for the Respondent

DATE HEARD: Written Submissions

Costs Endorsement

James J

[1] This is a costs endorsement in relation to a successful request by the Applicant to enforce the terms of a final order from 2011.

[2] The Applicant’s Bill of Costs claims $7,351.85 on a full recovery basis, $5,841.42 on a substantial recovery basis and $3,647.27 on a partial recovery basis.

[3] Disbursements were $113.00.

[4] The Applicant served an Offer to Settle two days before the hearing. The offer proposed that if the Respondent agreed to abide by the existing order with an added police enforcement clause, the Applicant would forego claiming any costs, provided that the Respondent communicated his acceptance by noon on January 28, 2021. The offer remained open for acceptance thereafter but subject to payment of substantial indemnity costs. Although the offer remained open for acceptance until the hearing started, which is a requirement of the Family Law Rules if enhanced costs recovery is sought, the offer did not contain a meaningful element of compromise; it simply provided for capitulation by the Respondent plus a substantial payment to the Applicant for her legal costs.

[5] In my view an offer in these terms should not result in increases costs recovery by the Applicant.

[6] The Applicant seeks to recover costs for the initial request for leave to bring the motion. Generally speaking, motions made without notice do not expose the opposing party to liability for the costs of such requests.

[7] I find the time spent to be rather high. The hourly rates are reasonable.

[8] The materials were well prepared.

[9] It was a short motion, limited to 40 minutes in all.

[10] Partial recovery of legal costs from the unsuccessful party is the norm. Recovery of costs on a higher scale is restricted to situations where the other side has acted unreasonably in how they conducted the court proceedings or where an offer to settle has triggered the costs consequences of the rules of court. Neither of those factors are present here.

[11] Impecuniosity on the part of the unsuccessful party is not a reason for depriving a successful litigant of reasonable compensation for her legal costs.

[12] In all the circumstances, the Applicant is granted costs payable by the Respondent in the total amount of $3,000.00 inclusive of fees, disbursements and applicable taxes, payable forthwith.

[13] It is open to the Applicant to accept payment on an instalment basis if she wishes to do so on such terms as she deems appropriate.

James, J. DATE: February 19, 2021