ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-FL-2263-4
DATE: 2012/11/16

BETWEEN:

JAMES KUMAR HALL
Applicant

– and –

XIANG HE
Respondent

Michael Murray, for the Applicant
Wade L. Smith, for the Respondent

HEARD: By Written Submissions

REASONS ON COSTS

m. lINHARES DE sOUSA j.

[ 1 ] In this matter the Respondent, Ms. He, has been substantially successful on the principal issue in this litigation, namely, where the child would reside during the school year. Consequently, pursuant to Rule 24(1) of the Family Law Rules , O. Reg. 114/99, she is entitled to her costs. On the facts of this case, I cannot find any reason for not awarding the Respondent her costs. I cannot find that either party acted in bad faith.

[ 2 ] I have examined the respective offers to settle made by the parties throughout this litigation. With respect to the Respondent’s offer to settle, dated July 25, 2012, in its totality, particularly with respect to the offered holiday time, it does not come within the mandatory application of Rule 18(14). However, it comes very close to being as favourable as the judgment received. The court may consider all offers to settle made by the parties in determining whether a party behaved reasonably throughout the litigation pursuant to Rule 24(4) and (5).

[ 3 ] Rule 24(11) lists the factors that the court ought to consider in coming to a decision on costs. This matter was important to the parties. The issues were not particularly complex or difficult. It did entail an examination of the jurisprudence dealing with the question of mobility which always touches on the very important issue of the best interests of the child. I have already addressed the question of the parties’ reasonableness or unreasonableness in their behaviour in the case.

[ 4 ] Both parties have incurred legal fees in this litigation and have provided their lawyers’ bills of costs. Based on the issues raised in this matter, I can take no issue with the time properly spent on the case by both lawyers. Both bills of costs are comparable and reasonable. I also conclude from this that both parties were fully aware of what quantum of costs they could reasonably be expected to pay if ordered to pay costs to the other party (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, (C.A.)).

[ 5 ] The last factor to consider is “any other relevant matter.” This can include such factors as a party’s ability to bear costs. Another consideration recognized by the jurisprudence is whether an award of costs would prevent a parent from caring or exercising access to a child contrary to the best interests of the child.

[ 6 ] It is clear that neither party was in a financial position to fund this litigation. I recognize the expense Mr. Hall must continue to bear in order to exercise access to his daughter from Halifax. However, Ms. He continues to have the primary care of her daughter during the school year. She will also bear the cost of the child’s section 7 expenses alone. She is in no better position than Mr. Hall to bear the costs of this litigation. In view of her substantial success in this matter it would be unfair to her to not award her some costs.

[ 7 ] I therefore order that Ms. He be awarded her costs fixed in the amount of $20,000, inclusive of HST, payable by Mr. Hall forthwith.

M. Linhares de Sousa J.

Released: November 16, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JAMES KUMAR HALL Applicant XIANG HE Respondent REASONS ON COSTS M. Linhares de Sousa J.

Released: November 16, 2012