COURT FILE NO.: FS-22-0056-00
DATE: 2022-10-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stefanie Hannele Veltri v. Robert Arthur Veltri
HEARD: by written submissions
BEFORE: Fregeau J.
COUNSEL: L. Conti and K. Hansen, for the Applicant
D. Cox, for the Respondent
Endorsement on Costs of Motion
Background
[1] At para. 66 of my Reasons on Motion, issued August 24, 2022, I indicated that if the parties were unable to agree on the costs of this motion, they were to file written submissions as to costs. The Applicant has now filed her Submissions on Costs and her Bill of Costs. The Respondent has filed Reply Submissions on Costs but has not filed his Bill of Costs for comparative purposes.
[2] The Applicant brought this motion requesting a temporary order granting her sole decision-making authority for the parties’ two children and permitting her to relocate with the children from Thunder Bay to Ottawa, effective September 1, 2022. The Applicant also requested an order varying the Respondent’s parenting time, establishing the sharing of travel expenses for the purposes of the father’s parenting time and reducing the Respondent’s child support obligation in the event she was successful in her relocation request.
[3] I granted the Applicant’s request for a temporary order permitting the relocation of the children to Ottawa. I declined to alter the provisions of the parties’ separation agreement relating to decision-making responsibility. I also varied the Respondent’s schedule of parenting time with the children to account for the fact that they would be residing in Ottawa pursuant to the temporary order. Finally, I ordered a sharing of the travel expenses incurred by the parties’ for the purposes of the Respondent’s parenting time and reduced the father’s child support obligation to account for increased costs in exercising parenting time.
[4] The Applicant submits that she was successful on the motion and is presumptively entitled to costs of the motion. The Applicant’s Bill of Costs indicates that the solicitor of record and counsel who argued the motion as agent for the solicitor of record docketed a total of 25.7 hours and that “advising counsel” docketed an additional 2.4 hours. The Applicant’s total fees, including HST, were $8,146.17. The Applicant requests costs of the motion in the amount of $7,000.00
[5] The Respondent submits that a costs order against him would seriously impact his ability to exercise parenting time with his children, a result which would not be in the children’s best interests. The Respondent submits that there be no order as to costs or that, in the alternative, costs in favour of the Applicant be fixed at $1,500.00, inclusive of HST and disbursements.
Discussion
[6] The Applicant was successful on the primary issues on the motion and is presumptively entitled to her fair and reasonable costs of the motion. There were no offers to settle the motion by either party.
[7] I accept the Respondent’s submission that costs in a family law proceeding are intended to partially indemnify the successful party. I also accept the Respondent’s submission that the court, in fixing costs, cannot ignore the best interests of the children and therefore cannot ignore the impact that the costs award may have on the Respondent in this case.
[8] The costs claimed by the Applicant are excessive for several reasons.
[9] First, the Applicant is claiming costs of $7,000.00, approximately 85% of her full indemnity costs. The Applicant is entitled to partial indemnity costs only, generally calculated as 60% of full indemnity costs. In this case partial indemnity costs, calculated at 60% of full indemnity costs of $8,146.00, as set out in the Applicant’s Bill of Costs, would be $4,888.00.
[10] Second, the Applicant has included in her Bill of Costs, 1.3 hours at $280.00 per hour and 1.1 hours at $350.00 per hour for “Advising Counsel”. This is in addition to a total of 25.7 hours claimed for the solicitor of record and for counsel who argued the motion as agent for solicitor of record.
[11] In my opinion, there should be no recovery for fees incurred in consulting internally with “Advising Counsel”, particularly when these fees are incurred in addition to the fees for two experienced family law counsel. The fees for “Advising Counsel”, totaling $749.00, will not be considered.
[12] Finally, while I appreciate that counsel who argued this motion on behalf of the Applicant did an excellent job in regard to both oral and written submissions (as did counsel for the Respondent), I find that a total of almost 26 hours ($6,220.00 in fees) for two counsel is excessive for a motion of this nature.
[13] The facts were straightforward and the applicable law, albeit involving new statutory provisions, was not complex. The time involved in counsel’s presentation at the motion was obvious. However, it is neither fair nor reasonable that excessive preparation time be visited on the unsuccessful party by way of a costs award. As an aside, it would have been of assistance to have the Respondent’s Bill of Costs for comparative purposes.
[14] I am also cognizant of the Respondent’s financial circumstances and the fact that an onerous costs award will undoubtedly impact his ability to exercise parenting time with his children, who now reside in Ottawa pursuant to a temporary order.
[15] The elimination of fees incurred by “Advising Counsel” and a reduction in fees incurred by the two primary counsel from $6,220.00 to $5,000.00 results in total fees, or full indemnity fees, of $5,240.00, including fees for the law clerk. Partial indemnity fees, at 60% of this figure, are therefore $3,144.00, plus HST. I find this to be a fair and reasonable costs award for this motion.
[16] The Respondent shall pay to the Applicant costs of this motion in the amount of $3,144.00, plus HST. These costs shall be paid within 30 days.
The Honourable Justice J.S. Fregeau
DATE: October 11, 2022
COURT FILE NO.: FS-22-0056-00
DATE: 2022-10-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stefanie Hannele Veltri v.
Robert Arthur Veltri
HEARD: by written submissions
BEFORE: Fregeau J.
COUNSEL: L. Conti and K. Hansen, for the Applicant
D. Cox, for the Respondent
ENDORSEMENT ON COSTS OF MOTION
Fregeau J.
DATE: October 11, 2022
/dg