COURT FILE NO.: FC-18-2272
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Justin Stuart Grant, Applicant
AND
Larissa Elizabeth Grant, Respondent
BEFORE: Mackinnon J.
COUNSEL: Karla Policelli for the Applicant
Cheryl Hess for the Respondent
HEARD: In Writing
Costs ENDORSEMENT
1The respondent seeks full indemnity costs of a motion heard on February 9, 2021 in which she sought child support, section 7 expenses, and a reduction in the father’s parenting time to eliminate overnights. The motion decision is located at 2021 ONSC 1202. The applicant proposes that each party bear their own costs, or in the alternative that the respondent’s costs be fixed at $5,000.
2The costs sought are $15,123.05 inclusive of fees, disbursements and HST. No issue was taken with the time and charges set out in the respondent’s Bill of Costs which were indeed somewhat less than those shown in the applicant’s Bill of Costs.
3The respondent was the successful party but is not entitled to full indemnity costs. The Ontario Court of Appeal has weighed in on this issue in two recent cases. In Beaver v. Hill, [2018] ONCA 840 that Court held at para 11:
“There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the imp011ance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter
4Neither a finding of unreasonable litigation conduct or having bested one’s Offer mandates an award of full costs. In both Beaver v. Hill and Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal stresses the importance of reasonableness and proportionality as the "touchstone considerations" to be applied in fixing the amount of costs.
5The applicant was successful in obtaining child support and section 7 awards. The offer she made in relation to these issues was reasonable, but she did not match her offer. She was not successful in eliminating the overnight parenting time. Her offer had proposed adjourning this issue until the section 30 assessment was complete, which is in line with the order made. This term of her offer was not severable, but there was no offer from the applicant on this or any issue.
6Costs of an adjournment request successfully made by the applicant in October were deferred to the motion judge. The applicant should receive a set off in the amount to be awarded to the respondent of $750 on this account.
7The respondent also submits that the applicant was unreasonable in not voluntarily paying the table amount of child support when he should have. I agree, and do take this into account as a factor, but am not persuaded that it should result in full indemnity costs.
8For these reasons I have fixed the respondent’s costs inclusive of fees, disbursements and HST at $ 8,250.
9Counsel also raised the issue of when during the month the child support payments are due. At paragraph 11 of my endorsement, child support payments were started on March 1, 2019. It was my intention that all subsequent payments be made on the first day of each successive month. This should be included in the formal order when issued.
Mackinnon J.
Date: April 12, 2021
COURT FILE NO.: FC-18-2272
DATE: 2021/04/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Justin Stuart Grant, Applicant
AND
Larissa Elizabeth Grant, Respondent
BEFORE: Mackinnon J.
COUNSEL: Karla Policelli for the Applicant
Cheryl Hess for the Respondent
costs ENDORSEMENT
Mackinnon J.
Released: April 12, 2021