Court File and Parties
CITATION: Zhang v. Guo, 2019 ONSC 5767
DIVISIONAL COURT FILE NO.: DC-19-2497
DATE: 2019/10/08
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Ye Zhang, Applicant (Moving Party)
AND:
Zhiwei Guo, Respondent (Responding Party)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston, for the Applicant
Ian Vallance, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
[1] The applicant mother moved for a stay of the interim custody and access order of Maranger J. pending the hearing of her motion for leave to appeal the order and, if leave is granted, pending the hearing of her appeal. I dismissed the applicant’s motion for a stay. I found that it is in the child’s best interests that the supervised access ordered by the motion judge in the first four weeks of the schedule be supervised by the maternal grandparents.
[2] The respondent father seeks his costs of the motion on a substantial indemnity basis, in the all inclusive amount of $3,318.46.
[3] The applicant submits that there are no grounds to justify costs on a substantial indemnity scale. She submits that there was divided success on the motion and that the appropriate order is no costs. In the alternative, the applicant submits that costs to the respondent in the amount of $1,000 would be appropriate.
[4] In fixing costs, the objective is to fix an amount that is fair and reasonable, having regard to the range of factors in Rule 57.01 of the Rules of Civil Procedure, for the unsuccessful party to pay, rather than an amount fixed by the successful party’s actual costs (Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634).
[5] I agree with the applicant that there are no grounds to justify costs on a substantial indemnity basis. In support of his position, the respondent alleges that the mother has engaged in unreasonable conduct since the release of my decision on the stay motion. As a general rule, substantial indemnity costs are awarded on very rare occasions, for example, when a party has displayed outrageous conduct during the proceedings (Prinzo v. Baycrest Centre for Geriatric Care, 2002 45005 (ON CA), [2002] O.J. No. 2712 (C.A.), at para. 76). The alleged conduct on which the respondent relies is not included in an affidavit. More importantly, the alleged conduct is post-motion conduct. It is not relevant to my assessment of costs in relation to the stay motion.
[6] There were no formal offers to settle the stay motion. The respondent maintains that he made an informal offer to resolve the motion in his affidavit by proposing that Ms. Cummings supervise the access visits. In the result, I ordered that the maternal grandparents supervise the access, not Ms. Cummings. The applicant’s August 28, 2019 offer was to settle all outstanding issues in the application on a final basis, and was not restricted to the stay motion. I have not taken into account the respondent’s proposal or the applicant’s comprehensive offer in assessing the costs of the stay motion.
[7] I do not agree with the applicant that success was divided on the motion. The applicant moved for a stay of the order of the motion judge. Her motion was dismissed. Both parties agreed that if access were to resume, a transitional period would be in the child’s best interests. The applicant proposed access at a supervised access centre or under the supervision of her parents. I rejected the supervised access centre option because of the associated delays. To facilitate meaningful access, I ordered that the maternal grandparents would supervise the access visits. In my view, this does not elevate the result on the motion to one of divided success. The respondent was substantially successful and is entitled to his costs on a partial indemnity basis.
[8] One measure of what is “fair and reasonable” to pay in costs may be arrived at by looking at the applicant’s own bill of costs in relation to the motion. The applicant’s costs are $3,036.59 on a partial indemnity basis. The applicant submits that this amount would have been less if the respondent had not proposed Ms. Cummings, someone unknown to the applicant, as a potential supervisor. The applicant says that she was not provided with sufficient information to enable her to assess Ms. Cummings’ qualifications. Accounting for these submissions, the applicant’s bill of costs would be very close to the same amount claimed by the respondent on a partial indemnity basis - $2,433.53.
[9] Having regard to all of the above, including the amount that the applicant could reasonably expect to pay in relation to the stay motion, I fix the respondent’s costs of the motion at $2,433.53, to be paid by the applicant within 30 days.
Justice R. Ryan Bell
Date: October 8, 2019
CITATION: Zhang v. Guo, 2019 ONSC 5767
DIVISIONAL COURT FILE NO.: DC-19-2497
DATE: 2019/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ye Zhang, Applicant (Moving Party)
AND:
Zhiwei Guo, Respondent (Responding Party)
BEFORE: Justice R. Ryan Bell
COUNSEL: Beverley A. Johnston, for the Applicant
Ian Vallance, for the Respondent
ENDORSEMENT
Ryan Bell J.
Released: October 8, 2019