Banman v Banman, 2023 ONSC 2216

Court File and Parties

COURT FILE NO.: FC-21-251 DATE: April 11, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Courtney Kay Banman (formerly known as Courtney Kay Davies) and Lance Timothy Banman

BEFORE: Justice M. S. James

COUNSEL: M. Peter Sammon, Counsel for the Applicant Stephanie Luskey, Counsel for the Respondent

DATE HEARD: In writing

Costs Endorsement

[1] This is a costs endorsement following a successful motion by the Respondent to increase his parenting time by implementing a week-about parenting regime.

[2] The Respondent claims substantial indemnity costs of $9000 due to alleged unreasonable behaviour by the Applicant in refusing to negotiate and by ignoring communications sent by the Respondent’s counsel.

[3] Many counsel in other cases over a long period of time have commented that it can be slow and difficult to obtain a response from the Applicant’s counsel and I accept that this can be the case. I also accept that the scope of what may constitute unreasonable behaviour is an expansive and open-ended list of considerations.

[4] The Applicant says the docketed time is excessive and that there is no reasonable basis to grant a punitive costs order. She says a costs award of $3312 plus HST would be reasonable.

[5] I conclude, however, that this is not an appropriate case to impose a costs award that is greater than the usual, partial indemnity scale. Punitive costs orders are limited to situations of egregious conduct that warrants the approbation of the court. Enhanced costs are also available when the costs consequences of a Rule 18 offer to settle are engaged. In this case the Respondent’s offer to settle included items that were not part of the motion, so Rule 18 does not apply.

[6] I find the total time spent on this motion by the Respondent is higher than what reasonably may have been anticipated by the Applicant. The term “reasonable costs” includes a consideration of what the losing side may reasonably have anticipated to pay in legal costs to the opposing party.

[7] In all circumstances I find that a reasonable partial indemnity costs award to the Respondent is $4000 plus HST, payable by the Applicant within 30 days.

Justice M. S. James Date released: April 11, 2023