The Applicant, Whitmore, argued, in a family law proceeding, that Costs should not be awarded against him because the Respondent’s counsel did not negotiate a settlement in good faith, and because of the unnecessary complexity that resulted from an ex parte Application that was made by the Respondent.

Yamauchi J. cited Rule 10.29(2) regarding Applications heard without notice to a party, and found it clear that the Costs of the ex parte Application should be in the cause. The Respondent had proved her case in the ex parte Application, and the Applicant was subsequently given the opportunity to present his case to the Court. Yamauchi J. commented that the general rule concerning Costs is contained in Rules 10.29(1), 10.31 and 10.33. These Rules contain substantive portions of the former Rule 601.

Yamauchi J. noted that party and party Costs is the starting point for establishing the quantum; those Costs are set out in Schedule C to the Rules. The Rules themselves do not, however, say that courts are duty-bound to award Costs based only on Schedule C. The Rules give courts much wider discretion. Yamauchi J. examined the amounts claimed by the Respondent and awarded party and party costs for various steps taken in relation to the matter, based on Column 1 of Schedule C.