BARRIE COURT FILE NO.: FC-11-1611
DATE: 20121004
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LALANYA RIHA, Applicant
AND:
VIKTOR RIHA, Respondent
BEFORE: EBERHARD, J.
COUNSEL:
D. Sindhwani, Counsel, for the Applicant
A. Wilford, Counsel, for the Respondent
HEARD: Motion heard August 9, 2012
costs ENDORSEMENT
[ 1 ] The Applicant Mother moved for increased child and spousal support and disclosure. Having received much disclosure on Tuesday of this week the Applicant Mother abandoned that part of the motion. However, the timing of disclosure remained a factor because the Applicant Mother’s counsel had not adequately assessed the new disclosure and it was introduced piecemeal to the court even though the financial documentation was both basic and crucial.
[ 2 ] I found the motion was in that sense premature but absolutely necessary to hear since the parties remain in financial chaos that will not promote the eventual evaluation of the issues in dispute.
[ 3 ] The Applicant Mother was successful on the motion to the extent she could be in light of late disclosure.
[ 4 ] I directed that Costs may be addressed in writing by the Applicant Wife submitting written argument of no more than two pages through the judicial secretaries by August 30, response by September 10 and reply by September 15, 2012.
[ 5 ] I have considered these written submissions and in light of dispute about whether a prior motion should be included in my consideration, I reviewed the endorsements of May 17, 2012 on a motion before Quinlan J. and the case conference conducted by McDermott J. on June 12, 2012.
[ 6 ] May 17, and June 12 are the procedural route that resulted in and planned for the motion I heard. On both days progress was made by agreement. This is as it should be. Co-operation in planning disclosure and procedural steps reduces the items in dispute and cost of argument about those items. This is to the financial advantage of both parties.co-operation is a positive factor as well in the consideration of the conduct of parties relevant to a cost sanction.
[ 7 ] However I am not persuaded by the Respondent Father’s submission that the urgent motion brought on May 17, 2012 was not proper and costs of attendance should be set off in his favour. There is no finding by Quinlan J. that it was not an urgent motion. The agreement that obviated the need to argue the motion allowed the parties to address the urgent concern appropriately. It is patent that the Applicant Wife needed to seek a court order as progress on obtaining the essentials of negotiation had stalled.
[ 8 ] The endorsement of McDermott J. on June 12, 2012 also adverts to continuing urgency of the financial circumstances, the need to get things moving and the problem with the matrimonial home not yet being listed and the necessary disclosure not yet being forthcoming. Both parties bore some responsibility for the impasse at that stage.
[ 9 ] My own endorsement speaks of the impediment to resolution created by the pace of disclosure and the conscientious analysis that must follow. The words of my endorsement, if read instead of re-arguing the issues, predict the costs result.
[ 10 ] So, using the cited words of Sharpe J. as a reasonable précis of overarching costs principle [1] , I find that the Applicant Wife succeeded, the parties settled some issues along the way to facilitate the motion thus saving cost, but the late disclosure impeded both settlement and adjudication.
[ 11 ] As to quantum, the Respondent Father’s own bill of costs for attendance on May 17, 2102 claims a set off at full indemnity of $7,435.63. I intend no set off but the figure creates a telling comparator for the Applicant Wife’s full indemnity claim of $5,663.03 for the argued motion.
[ 12 ] Costs fixed in favour of the Applicant Wife as requested at $5,663.03.
EBERHARD J.
Date: October 4, 2012
[1] …modern cost rules are designed to foster three fundamental purposes:
To indemnify successful litigants for the cost of litigation;
To encourage settlements; and
To discourage and sanction inappropriate behaviour by litigants.
Fong V. Chan (1999), 46 O.R. (3d) 333 (C.A.)