COURT FILE NO.: D26635/18
DATE: 2021/06/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ilona Del Gobbo
Paula Ferré, for the Applicant
Applicant
- and –
James Del Gobbo
FayAnn Guilbeault, for the Respondent
Respondent
The Honourable Justice Edwards
COSTS ENDORSEMENT
[1] On April 29, 2021 I released my decision with respect the trial. I requested costs submissions from the parties if they were unable to agree upon costs. The parties did not agree upon costs and I have now received and reviewed those costs submissions.
[2] This is my costs decision.
Background
[3] I conducted an eight-day trial during the month of April 2021.
[4] In my decision I granted primary residence and sole decision-making power for the parties’ child to the Applicant. I granted the Respondent expanded parenting time and ordered him to pay child support and to provide life insurance as security for child support. Further, I ordered the Respondent pay an equalization payment in the amount of $97,105.72.
The Positions of the Parties
[5] The Applicant seeks costs on a combination of partial and substantial basis in the amount of $43,401.81.
[6] She submits that she was the successful party, that the Respondent acted unreasonably and in bad faith. Further, she asserts that the matter was complex and that the time spent by her lawyer and his lawyer’s hourly rate are all appropriate and consistent with that complexity.
[7] Further, she notes that an Offer to Settle was served on the Respondent on March 17, 2021 and asserts that she was wholly successful in terms of satisfying or exceeding the terms of his Offer at trial.
[8] Further, she advises that two Offers to Admit were served upon the Respondent and he failed to sign either.
[9] The Respondent submits that the Applicant was not successful with respect to what she claimed in her initial Application, and that it was the Applicant and not the Respondent who acted unreasonably throughout the litigation.
[10] As well, the Respondent states that he made three Offers to Settle: January 15, 2020, November 11, 2020 and April 4, 2021. Further, the Applicant rejected his Request to Admit.
[11] He asserts that he was at least successful on 50% of the issues: his parenting time was extended, his income was not imputed, the child support arrears were determined to be closer to the Respondent’s submissions, and the Applicant’s claim for return of items was dismissed, as was claim that tort of intrusion upon seclusion dismissed.
[12] The Respondent seeks costs of $17,515.03 on a partial indemnity basis or $35,030.05 on the higher basis.
Law
[13] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: See Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.).
[14] As was pointed out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 72 O.R. (3d) 291 (C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.
[15] Also as noted in Boucher, determining the quantum of costs is not simply a mechanical exercise. Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.
[16] The ability to pay by the unsuccessful litigant is only relevant to the issue of the quantum of costs, not the liability for costs: See LeVan v. LeVan, 2006 CanLII 63733 (ON SC), 32 R.F.L. (6th) 359 (Ont. Sup. Ct.), at para. 36.
[17] The applicable provisions for the exercise of my discretion include s. 131 of the Courts of Justice Act and Rules 18 and 24 of the Family Law Rules.
[18] The Court of Appeal has confirmed that cost rules are designed for three important principles:
a) To partially indemnity successful litigants for the cost of litigation;
b) To encourage settlement; and
c) To discourage and sanction inappropriate behaviour by litigants.
Analysis
[19] First, I am satisfied that the Applicant was successful on most of the significant claims that she pursued at trial, namely, primary decision-making and residence of the child, child support, contribution of s.7 expenses, medical benefits, equalization, defeating the Respondent’s claim for spousal support, and a divorce.
[20] As such, she is entitled to costs.
[21] As I have noted, both parties submitted Offers to Settle. However, neither party achieved success equal to or better than their Offer.
[22] I find that the issues were very important to the parties but not overly complex and difficult.
[23] I also found that the Respondent was selective in his productions and neglected to produce evidence that may have been negative to his case. For example, he produced only part of a letter written by the Applicant. Further, he did not produce evidence to support his claims, particularly with respect to equalization. The Applicant was required to obtain two disclosure orders, including one at the beginning of trial, because the Respondent failed to comply with his disclosure obligations. Further, two costs awards remain outstanding against the Respondent.
[24] This conduct entitles the Applicant to costs somewhat enhanced from partial indemnity, but less than on a substantial indemnity basis.
[25] I am satisfied that the Applicant’s prior counsel, as well as her current counsel’s hourly rate and the time spent, are appropriate.
[26] Accordingly, I order that the Respondent pay to the Applicant costs in an amount of $38,000 fixed, inclusive of HST. One third of the cost award is attributable to child support and is collectable by the Family Responsibility Office (FRO).
D.L. Edwards J.
Released: June 11, 2021
COURT FILE NO.: D26635/18
DATE: 2021/06/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ilona Del Gobbo
Applicant
- and –
James Del Gobbo
Respondent
COSTS ENDORSEMENT
D.L. Edwards J.
Released: June 11, 2021