Court File and Parties
Court File No.: FS-21-0162-00 Date: February 21, 2023
Ontario Superior Court of Justice
Between:
J. J., Applicant Michael Cupello, for the Applicant
- and -
T. H., Respondent Chris McInnis, for the Respondent
Heard: By Written Submissions
Before: Mr. Justice J.S. Fregeau
Endorsement on Costs
Introduction
[1] At para. 41 of my June 2, 2022, Endorsement on Motion, I directed the parties to file written Costs Submissions if they were unable to agree on the costs of the motion. They have now filed Costs Submissions.
[2] T.H., the respondent/mother, seeks costs in the amount of $5,418 plus HST, payable within 30 days. The costs award sought by the mother reflects costs of the motion on a partial indemnity basis (@ 60% of full recovery costs) of $918 up to and including May 1, 2022, the date of her Rule 18 Offer to Settle, and costs on a full recovery basis, thereafter.
[3] J.J., the applicant father, suggests that the mother’s costs be fixed at $1,500 and paid from his share of the proceeds of sale of the jointly owned family residence.
Background
[4] The mother and father resided in Marathon in a jointly owned residence between 2013 and 2021. They had a child, B.J. born December 23, 2017. On June 10, 2021, the mother left Marathon with B.J. and with the father’s consent, to visit her family in Sudbury. On June 28, 2021, the father ended the parties’ relationship. The mother remained in Sudbury and the parties’ second child was born on August 28, 2021.
[5] Each of the parties had a motion before the court on December 3, 2021. At that time, Nieckarz J. ordered, among other things, that:
The trial of parenting issues was to be held in January or March 2022 with the financial issues to be tried later if not resolved; and
Pending the decision of the trial judge, the children were to live with the mother in Espanola with the father having parenting time in Marathon and exchanges taking place in Sault Ste. Marie.
[6] Prior to a March 2022 trial date, the parties adjourned the trial of the parenting issues to November 2022 on consent. The mother then brought this motion seeking temporary child support and an order compelling the sale of the jointly owned residence in Marathon and the immediate division of the net proceeds of sale.
[7] In my June 2, 2022, Endorsement on Motion, I ordered:
That the father pay guideline child support to the mother for two children, based on his 2021 income, retroactive to November 1, 2021 and reduced to reflect an equal sharing of the travel costs incurred by each of the parties to facilitate the father’s parenting time;
The immediate listing and sale of the jointly owned residence and the equal division of the net proceeds of sale upon completion of the sale.
The Mother’s Position
[8] The mother submits that she was entirely successful on the motion and that she “bested” her May 2, 2022 offer to settle the motion, such that pursuant to Family Law Rule 18(14) she should be awarded full recovery costs after the date of her offer.
[9] The mother further submits that her total costs for the motion in the amount of $6,030, plus HST, are reasonable, based on a hourly rate of $300 for counsel with 22 years of experience.
The Father’s Position
[10] The father submits that costs claimed by the mother are unreasonable and not proportionate for a motion in which both the issues and the applicable law were not complex. The father suggests that costs be paid to the mother out of his share of the proceeds from the sale of the jointly owned residence.
[11] The father contends that the 20 hours claimed by the mother’s counsel for the motion is excessive given counsel’s level of experience, includes time unrelated to the motion and includes a totally unreasonable five hours for preparing costs submissions. The father further submits that it is an error in law to award full recovery costs in family law cases.
[12] The father submits that an award of costs to the mother in the amount of $1,500, plus H.S.T., to be paid out of the father’s share of the proceeds of sale of the jointly owned residence is a fair and reasonable determination of the costs of this motion.
Discussion
[13] The mother was entirely successful on the motion and is therefore presumptively entitled to her costs of the motion. The result achieved by the mother on the motion was also better than the terms of her May 2, 2022 offer to settle, which I find met the conditions of Family Law Rule 18(14).
[14] However, a court has considerable discretion when awarding costs, including deviating from the strict application of Family Law Rule 18(14). While offers to settle are to be encouraged in family law cases, the financial conditions of the parties is always a relevant consideration. In this case, I will take into account that the mother “beat” her May 2, 2022 offer to settle the motion but I decline to award full recovery costs from that date to the hearing of the motion.
[15] I find that a billing rate of $300 per hour for counsel with 22 years of experience in family law matters is reasonable. However, the “sword cuts both ways” – counsel with 22 years’ experience is expected to be more efficient than a less experienced counsel. The factual and legal issues involved in this motion were straightforward and should not have required 20 hours of work. In particular, five hours billed for work related to the preparation of costs submissions is unreasonable and excessive.
[16] In the circumstances, I find that costs on a partial indemnity basis of 65%, as opposed to the usual 60% of full recovery costs, is fair and reasonable. I also find that it is appropriate that the costs be paid now and not out of the sale proceeds of the jointly owned residence.
[17] The father shall pay to the mother her costs of this motion in the amount of $3,920 ($6,030 x .65) plus HST within 30 days.
“Original signed by” The Honourable Mr. Justice J.S. Fregeau
Released: February 21, 2023