Court File and Parties
COURT FILE NO.: FC958/19 DATE: February 17, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: M.P.D., applicant AND: C.J.S., respondent
BEFORE: MITROW J.
COUNSEL: Leonard G. Reich for the applicant C.J.S. in person
HEARD: written submissions filed
Endorsement on Costs
[1] Pursuant to my order dated November 26, 2021, the parties were granted permission to file written costs submissions, which I have received from both parties, and reviewed.
[2] There were three main issues on the motions filed by the parties: (1) the respondent father’s interim parenting time; (2) the respondent’s request for sale of the jointly-owned residence; and (3) the applicant mother’s claim for interim spousal support and interim child support.
[3] The applicant submits that she was “85%” successful. She submits that her total costs of the motions were $14,011, which she reduces to 85% - $11,909.35; she submits that 70% partial recovery is reasonable, and she seeks costs of $8,336.55.
[4] It is noted that the applicant has changed counsel. Her previous counsel represented the applicant on the motions, and has prepared the applicant’s written costs submissions.
[5] The respondent, who is self-represented, argues he was “at least 75% successful.” His position is that he should not be expected to contribute to any of the applicant’s legal fees.
[6] In his submissions, the respondent makes no monetary claim for costs against the applicant.
[7] The first issue is to determine who is the successful party.
[8] Focussing on the main issues, I find that on the issue of parenting time that there was divided success. The applicant was successful regarding the child M., as the parenting time remained subject to M.’s wishes; the respondent was successful regarding L. because some in-person parenting time was awarded to the respondent. The applicant’s position was that the respondent’s parenting time with L. should remain virtual.
[9] On the issue of the sale of the residence, the respondent was successful.
[10] On the issues of child and spousal support, the applicant was successful.
[11] In considering the factors in r. 24(12), I find that neither party’s behaviour can be described as unreasonable. Each party pursued his or her reasonably-held position.
[12] The time spent by the applicant’s counsel, as well as his hourly rate, was reasonable. The respondent provides no information as to how much time he spent. There were no written offers to settle mentioned in the submissions.
[13] The issues were important to both parties, and there was some element of complexity to the support issues because of the necessity to impute income to the respondent.
[14] In applying the principle of proportionality, I find that the legal fees incurred by the applicant were proportional to the importance of the issues.
[15] As to reasonableness, in awarding costs, the court must reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party, rather than engaging in a purely mathematical exercise to arrive at an exact measure of the actual costs of the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52.
[16] Given the divided success on the parenting issue, I award no costs in relation to that issue.
[17] Given that the respondent was successful on the sale of the residence, he is presumptively entitled to costs on the issue, but he advances no costs claim. Clearly the applicant is not entitled to receive her costs on that issue.
[18] However, I would not attribute more than 15 – 20% of the time spent on the motions to the sale of the residence. Much more time than that was spent on the parenting issue.
[19] I would assess somewhere in the range of 40 – 45% as time spent on the child and spousal support issues.
[20] The applicant is presumptively entitled to her costs on the support issues.
[21] Although the applicant did not proceed with some claims for disclosure, and although the respondent’s claim for division of personal property was dismissed, the time spent on those matters was marginal.
[22] I find that the applicant is entitled to some costs and that a reasonable amount, all-inclusive, is $5,000.
Order
[23] I order as follows:
- The respondent shall pay to the applicant her costs of the motions fixed in the amount of $5,000 inclusive of HST and disbursements, said costs to be paid within 30 days.
- The full costs amount of $5,000 shall constitute a support order within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and shall be enforceable by the Director.
“Justice Victor Mitrow” Justice Victor Mitrow Date: February 17, 2022