2017 ONSC 1661, 2017 ONSC 1661

CITATION: KAUKINEN v. SIMMS, 2017 ONSC 1661 COURT FILE NO.: 46721-12-02 DATE: 2017/03/15 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CYNTHIA HOPE KAUKINEN, Applicant AND: MATTHEW EDWARD SIMMS, Respondent BEFORE: The Honourable Justice D.A. Broad COUNSEL: Filomena Andrade, for the Applicant Kaitlin A. Jagersky, for the Respondent costs ENDORSEMENT [1] The parties have been unable to settle the question of costs and have now delivered their written submissions on costs.

Positions Of The Parties [2] The applicant seeks costs of the motion on a full indemnity basis in the total amount of $3,408.08 comprised of fees forpreparation of $2,400, fee for the court appearance at $600 and disbursements of $408.08. She submits that the nature of the motion wassuch that it was not feasible for her to make an offer to settle, as there is no money involved in the issue. Since she was entirelysuccessful in resisting the respondent’s motion to set aside the judgment made on default, she should be awarded full recovery costs.

Inthe alternative she submits that she should be awarded partial indemnity costs of $2,843.08. [3] Although the respondent acknowledges that the applicant was the successful party on the motion, he submits that no costsshould be awarded. He says that he reasonably believed that the applicant was unable to bring a court proceeding until the partiesattended a session with a parenting coordinator pursuant to Justice Sloan’s Order of October 7, 2015.

Additionally, he says that he hasbeen overpaying the applicant child support and that he is now forced to bring his own motion to change, to deal with the issues of childsupport and arrears. He says there already is an outstanding costs award against him on the final judgment in the sum of $1,655.73. Therespondent argues that making an additional order for costs against him would have a negative impact on his ability to pay child supportwhile continuing to fund his other monthly expenses.

Guiding Principles [4] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity anddifficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properlyspent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M.(C.A.) v. M. (D.) (2003), (ON CA), 67 O.R. (3d) 181 (Ont.

C.A.) at para 42). [5] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (seeButty v. Butty, (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont.

C.J.) at para. 13, it was heldthat, for the purpose of sub-rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested inthe pleadings and against the terms of any offers to settle. [6] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) toindemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriatebehavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont.

C.A.) at para. 24). [7] While the case law requires the Court to consider the means of the parties, the limited financial resources of a party do notnecessarily afford immunity from a costs order, but may affect the scale or quantum of costs (see Parsons v. Parsons (2002), (ON SC), 31 R.F.L. (5th) 373 (Ont.

S.C.J.) at para. 12). [8] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, ratherthan an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have topay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours anddocuments created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis [9] In my view, the respondent has not demonstrated any basis to displace the presumption in sub-rule 24(1) that the applicantshould be entitled to costs of the motion.

[ 10 ] The fact that there is an existing costs award in relation to the default judgment, does not disentitle the applicant to costs in respect of the respondent’s unsuccessful motion to set it aside. [ 11 ] However, I am not satisfied that the respondent acted in bad faith within the meaning of that term in sub-rule 24(8) of the Family Law Rules . The respondent’s behaviour has not been shown to have been carried out with intent to inflict harm, to conceal relevant information, or to deceive the other party or the court. [ 12 ] In my view the applicant should be entitled to costs on a partial indemnity basis.

I accept that, barring misconduct, full recovery costs are the exception and not the rule. [ 13 ] I do not accept that in the circumstances of this case the financial means of the respondent is a relevant consideration in determining the quantum of the costs to be awarded. [ 14 ] Although the respondent generally takes no issue with respect to hourly rates utilized by the applicant on a partial indemnity basis, he does say that the time for attendance to argue the motion should be reduced from two hours to one hour. [ 15 ] I do not accept this submission.

Although the argument of the motion took one hour, counsel’s attendance, excluding travel time, comprised two hours. The claim for partial indemnity costs based upon the time spent by counsel is reasonable. Disposition [ 16 ] It is ordered that the respondent pay to the applicant costs of the motion fixed on a partial indemnity basis in the sum of $2,843.08. This amount is to be paid within 30 days of the date hereof. D.A. Broad Date: March 15, 2017