Court File and Parties

COURT FILE NO.: FS-20-90-00 DATE: February 23, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ronald Todd Hurdon William Shanks, for the Applicant Applicant

- and -

Kathryne Lindsay Crooks Martha Petryshyn, for the Respondent Respondent

HEARD: By Written Submissions

Mr. Justice J.S. Fregeau

ENDORSEMENT ON COSTS

INTRODUCTION

[1] At para. 102 of my Reasons on Motions, dated January 18, 2023, I directed the parties to file written Costs Submissions if they were unable to agree on the costs of these motions. Counsel for the parties have now done so.

[2] The applicant (“Mr. Hurdon”) submits that there should be no costs ordered because there was divided success on the motions. In the alternative, Mr. Hurdon submits that if costs are awarded to the respondent (“Ms. Crooks”), they should be fixed in the amount of $5,000.00, inclusive of HST.

[3] Mr. Hurdon’s Bill of Costs, filed for comparative purposes, indicates that his costs of the motions were $8,915.20, inclusive of fees, disbursements and HST on a partial indemnity basis (67% of actual costs) and $11,782.00, inclusive of fees, disbursements and HST, on a substantial indemnity basis (90% of actual costs). Mr. Shanks and Ms. Hasan each docketed 12 hours for the motions. Mr. Shank’s hourly rate, with 43 years of experience, is $490.00. Ms. Hasan’s hourly rate, with 1.5 years of experience is $200.00.

[4] Absent from Mr. Hurdon’s Bill of Costs is any detail as to Mr. Shanks’ or Ms. Hassan’s 12 hours of docketed time. Those hours seem low given the volume of material, the issues involved and the length of oral argument.

[5] Ms. Crooks submits that she was the more successful party on the motions and that the actions of Mr. Hurdon increased the time required leading up to and at the hearing of the motions. Ms. Crooks suggests that she should be awarded costs on a full indemnity basis in the amount of $28,150.19, inclusive of fees, disbursements and HST. In the alternative, Ms. Crooks submits that she should be awarded costs on an enhanced partial indemnity basis (70% of actual costs) in the amount of $19,715.87.00, inclusive of fees, disbursements and HST.

[6] Ms. Crooks’ Bill of Costs indicates that her costs of the motions were $28,150.19 on a full indemnity basis, $19,715.87 on an enhanced partial indemnity basis and $16,904.43 on a partial indemnity basis (60% of actual costs), all figures inclusive of fees, disbursements and HST. Ms. Petryshyn docketed 53.7 hours for the motions. Her hourly rate, with 35 years of experience, is $425.

MR. HURDON’S POSITION

[7] Mr. Hurdon submits that there were seven issues before the court on the motions, namely:

1. Retroactive and ongoing child support;
2. Decision-making responsibility;
3. Retroactive and ongoing spousal support;
4. Temporary exclusive possession of the jointly owned family home;
5. The valuation of Ms. Crooks’ book of business;
6. Occupation rent; and
7. The sale of the jointly owned family residence.

[8] Mr. Hurdon contends that all issues were equally complex and important, that neither party was fully successful, and that Ms. Crooks was only partially successful.

[9] Of the issues before the court, Mr. Hurdon sought an order in relation to issues numbered 3, 4 and 5 above. Mr. Hurdon contends that he was successful in obtaining a temporary order for retroactive and ongoing spousal support. He acknowledges that he was unsuccessful on issues numbered 4 and 5.

[10] Mr. Hurdon submits that Ms. Crooks sought temporary orders in regard to issues numbered 1, 2, 6 and 7. He notes that the court declined to make an order as to decision-making responsibility and dismissed Ms. Crooks’ request for a temporary order requiring him to pay occupation rent. He acknowledges that Ms. Crooks was awarded retroactive and ongoing child support and s. 7 expenses and was successful in having the jointly owned family residence ordered appraised and sold.

[11] Mr. Hurdon contends that neither party obtained all the relief they sought. The divided success should result in no costs being awarded or, in the alternative, costs being awarded to Ms. Crooks in the reduced amount of $5,000.00, according to Mr. Hurdon.

MS. CROOKS’ POSITION

[12] Ms. Crooks notes that the parties agreed at the September 30, 2020, Case Conference that Mr. Hurdon was entitled to temporary spousal support, at least as of April 2020, with the quantum remaining in issue. The parties also agreed that any temporary order for child or spousal support would be retroactive only to April 2020. Ms. Crooks submits that Mr. Shank’s insistence on questioning her on her affidavit material unnecessarily increased costs for both parties.

[13] Ms. Crooks disputes that success was equally divided on the motions. She submits that she was substantially more successful than Mr. Hurdon on an overall basis. Ms. Crooks contends that none of the issues were legally or factually complex but that they were made so by Mr. Shank’s conduct on the motions. She further suggests that the issues were not of equal importance – the most pressing issue from her perspective was the valuation and sale of the family home. Ms. Crooks notes that spousal support was being paid voluntarily and that both parties were content with the status quo in regard to decision-making responsibility and parenting time.

[14] Ms. Crooks submits that she was successful in obtaining a temporary order for retroactive and ongoing child support and in compelling the sale of the family home. She further submits that she was successful in opposing Mr. Hurdon’s claim for exclusive possession of the family home and his request for an order requiring her book of business be valued. Ms. Crooks submits that the quantum of retroactive and ongoing spousal support ordered by the court to be paid by her to Mr. Hurdon was less than proposed in an Offer to Settle she made on October 6, 2020.

[15] Ms. Crooks submits that Mr. Hurdon declined to address the issues of retroactive and ongoing child support and s. 7 expenses after separation, necessitating that these be dealt with by way of a motion for temporary relief and on which she was successful.

[16] Ms. Crooks suggests that the result she obtained on the relief requested by her on the motions “beat” her October 6, 2020 Offer to Settle on the issues addressed in her offer such that she is entitled to her costs on a full recovery basis on those issues from the date of that offer. Ms. Crooks also notes that she made an informal offer to settle the costs of the motions by offsetting her costs against the retroactive support obligation she was found to owe to Mr. Hurdon in the approximate amount of $19,000.00. This was declined.

DISCUSSION

[17] Neither counsel takes issue with the other’s hourly rate nor with the hours docketed on these motions. I note that Ms. Crooks’ counsel docketed more than twice the hours that Mr. Hurdon’s counsel did.

[18] I reject Mr. Hurdon’s submission that success on the motions was divided and the implication that success was equally divided such that no costs should be ordered. I accept Ms. Crooks’ submission that she was substantially more successful on the motions. I further find that the majority of the time consumed on the motions was directed to the issues on which Ms. Crooks was successful.

[19] Mr. Hurdon sought temporary exclusive possession of the family home (despite the fact that the parties were not married and that the home was not a matrimonial home) and opposed the sale of the home. Ms. Crooks was successful on both issues. The parties agreed that the home should be appraised but were unable to agree on who should do the current appraisal. Ms. Crooks was unsuccessful in her claim for occupation rent. Little to no time was directed at this issue.

[20] Mr. Hurdon sought an order for a valuation of Ms. Crooks’ book of business, arguing that it was necessary because he would be arguing joint family venture at trial. For the purposes of the motions, the suggestion of a joint family venture was rejected and the request for a valuation of Ms. Crooks’ book of business was therefore dismissed. A significant amount of time was allocated to these issues.

[21] Mr. Hurdon’s entitlement to temporary spousal support and the date to which it would be retroactive were not in issue. The basis for entitlement, the date of separation, the determination of Ms. Crooks’ income all impacted the quantum of temporary spousal support and all were in issue. While Mr. Hurdon was awarded retroactive and ongoing spousal support, it was ordered in much lower amounts than sought. In my view, Ms. Crooks was successful on these issues. She also beat her October 6, 2020 Offer to Settle on these issues. A significant amount of time was also allocated to these issues.

[22] The issues of decision-making responsibility and parenting time were not argued and no order was made in regard to these issues.

[23] Mr. Hurdon’s obligation to pay retroactive and ongoing child support and to contribute proportionately to the children’s s. 7 expenses retroactively and on an ongoing basis were not addressed by Mr. Hurdon in his materials or in oral argument. Ms. Crooks was successful on these issues.

[24] Given that Ms. Crooks was predominantly successful on the motions, she is entitled to a fair and reasonable costs award. However, I reject Ms. Crooks’ submission that she should be awarded costs on a full or substantial indemnity basis. I do, however, take Ms. Crooks’ October 6, 2020 Offer to Settle into account, together with her informal offer to settle the costs issue, in deciding the quantum of costs she should be awarded.

[25] I have reviewed Ms. Petryshyn’s Bill of Costs carefully. I was unable to find any unwarranted time. I note that 4 hours was required for attendance at cross-examinations on affidavits due to the position taken by Mr. Hurdon’s counsel. The transcript of that cross-examination did not factor into the decision on the motions.

[26] Ms. Crooks’ partial indemnity costs are $16,904.43, inclusive of fees, disbursements and HST. In my view, this is a reasonable figure given the number of issues addressed on these motions, the volume of material, the length of oral argument, the time consumed by the various issues and Ms. Crooks’ success on the primary issues in relation to the time expended on those issues.

[27] I order that Mr. Hurdon pay to Ms. Crooks the costs of these motions on a partial indemnity basis in the amount of $16,904.43, “all in”. These costs shall be paid within 30 days and shall be enforceable through the Family Responsibility Office together with the child support ordered.

“Original signed by” The Honourable Mr. Justice J.S. Fregeau

Released: February 23, 2023