



COURT OF APPEAL FOR ONTARIO

CITATION:
Selznick v. Selznick, 2013
    ONCA 35

DATE: 20130121

DOCKET: C55060

Doherty, Hoy and Pepall JJ.A.

BETWEEN

Mirilyn Rachel Selznick (now Mirilyn Rachel
    Sharp)

Applicant/Appellant
    in Appeal

and

Stephen Selznick

Respondent/Respondent in Appeal

Stephen Grant, for the appellant

Diane E. Klukach, for the respondent

Heard: September 19 and 20, 2012

Released: October 12, 2012

On appeal from the order of Justice Susan E. Greer of the
    Superior Court of Justice dated November 9, 2011 and January 21, 2012.

COSTS ENDORSEMENT

Costs
    of the Appeal

[1]

The appellant seeks her costs of the appeal from the respondent, on a
    full recovery basis, in the amount of $79,472.30. Alternatively, the costs she
    claims, on a partial recovery basis, are $39,924.36.

[2]

The respondent seeks his costs of the appeal from the appellant, on a
    partial recovery basis, in the amount of $29,733.61.

[3]

As this court has observed, a costs award should reflect an amount that
    is fair and reasonable for the unsuccessful party to pay: see
Boucher v.
    Public Accountants Council for the Province of Ontario
(2004), 71 O.R. (3d)
    291. The principles embodied in the
Family Law Rules
, O. Reg. 114/99, also
    provide guidance in addressing costs in a family law appeal, even though those
    rules do not strictly apply to this court: see rule 1(2).

[4]

Rule 24(1) of the
Family Law Rules
provides that there is a
    presumption that a successful party is entitled to the costs of an appeal.

[5]

The parties identified five issues to be argued on the appeal. The
    respondent was successful on four of those issues, but was unsuccessful on the
    fifth, his motion to introduce fresh evidence.

[6]

Apart from the issue of the admission of fresh evidence, the respondent
    was therefore successful on the appeal. As such, he is entitled to his costs of
    the appeal.

[7]

Rule 24(11) of the
Family Law Rules
provides that the court
    should consider the following factors when fixing the amount of costs:

a)

the importance,
    complexity or difficulty of the issues;

b)

the reasonableness or
    unreasonableness of each partys behaviour in the case;

c)

the lawyers rates;

d)

the time properly
    spent on the case, including conversations between the lawyer and the party or
    witnesses, drafting documents and correspondence, attempts to settle,
    preparation, hearing, argument and preparation and signature of the order;

e)

expenses properly paid
    or payable; and

f)

any other
    relevant matter.

[8]

The issues were of obvious importance to the parties and, based on a
    review of the parties respective bills of costs, the time spent on behalf of
    the respondent by his lawyers and their hourly rates are reasonable. The
    respondent reduced his claim for costs by 10% to reflect his lack of success on
    the fifth issue. He legitimately included a claim for the costs of the August
    28, 2012 court attendance, at which time Ducharme J.A. reserved the costs of
    the attendance to the panel hearing the appeal.

[9]

Certainly the appeal record was voluminous. Not all of the costs claimed
    by the respondent that are associated with the appellants numerous motions and
    factums filed in this court are appropriately visited upon the appellant,
    however. In particular, the costs arising from the appellants August 14, 2012 motion
    to file a reply factum, which addressed the inclusion of a new document in the
    respondents materials, should not be borne by the appellant.

[10]

The
    appellants offers to settle the appeal do not attract the cost consequences
    contained in Rule 18 of the
Family Law

Rules
(or Rule 49 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194). The motion judges order was
    upheld on appeal. The total amount the motion judge ordered the respondent to pay
    to the appellant was less than the total amount requested in the appellants
    offers. The appellant was always able to bring a motion to seek an additional
    contribution to the Cornell University expenses. The appeal did not change this
    fact.

[11]

In
    our view, a costs award of $25,000 in favour of the respondent is fair and
    reasonable in the circumstances.

[12]

The
    respondent requests that the costs award be enforceable against the appellant
    by the Family Responsibility Office. This costs order is a support order under
    s. 1(1) of the
Family Responsibility and Support Arrears Enforcement Act,
    1996
, S.O. 1996, c. 31, and is therefore enforceable by the Family
    Responsibility Office: see e.g.
A.M.D. v. A.J.P.
(2003), 167 O.A.C. 274
    (C.A.). The respondents request is therefore granted.

Costs of the Underlying Motion

[13]

The
    appellant also seeks her costs of the underlying motion in the amount of
    $54,192.74.

[14]

The
    costs award of the motion judge was rendered one day before the hearing of this
    appeal. She awarded the respondent costs in the amount of $32,974.57 inclusive
    of HST and disbursements.

[15]

The
    appellant did not seek leave to appeal the motion judges cost award and that award
    was not properly before this court. Counsel on the appeal were expressly
    advised that this court did not propose to address the costs awarded in the
    motions court.

[16]

If
    the appellant persists in her desire to appeal the motion judges cost award,
    she must seek leave of this court pursuant to s. 133(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43. Counsel for the respondent indicated
    that the respondent would not take the position that the appellant was out of
    time to seek leave to appeal the motion judges cost award. If the appellant
    decides to pursue a request for leave, she should do so on an expeditious
    basis.

[17]

In
    summary, the appellant is to pay the respondent his costs fixed in the amount
    of $25,000 inclusive of disbursements and applicable taxes.

Doherty J.A.

Alexandra Hoy J.A.

S.E. Pepall J.A.


