SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F255/07-02

DATE: January 14, 2013

RE: Ivana Graziella Figueiredo, applicant

AND:

Daniel Figueiredo, respondent

BEFORE: MITROW J.

COUNSEL:
Michael R. Nyhof for the applicant
David Ashford for the respondent

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] I have reviewed the written submissions made by Mr. Figueiredo (October 17, 2012) and Ms. Figueiredo (November 20, 2012) in relation to the interim custody motions brought by the parties that were dealt with in my endorsement released September 20, 2012.

[2] Mr. Figueiredo seeks $4,373 in costs. He attaches a bill of costs. The hourly rate used by Mr. Ashford is $300 per hour. That rate is very reasonable given his 1979 call and is less than his regular hourly rate. (Some rates for Mr. Ashford are shown in the bill of costs at $360 per hour, but the total fees are actually based on $300 per hour.) The time spent on the motion (12.9 hours) is reasonable. No disbursements are shown.

[3] Mr. Figueiredo was clearly the successful party on the substantive issue before the court. He proposed in an email in July 2012 to retain the rotating 48 hour schedule, and he was successful. I find he is presumptively entitled to costs.

[4] Ms. Figueiredo’s primary submission is that there should be no order as to costs. Ms. Figueiredo argues that she achieved some success on the motion because the order required Mr. Figueiredo to ensure that the children are taken to the after school and/or daycare program as arranged by Ms. Figueiredo and, as a result, Ms. Figueiredo can maintain her recently obtained fulltime employment. She argues Mr. Figueiredo had refused to cooperate with activities arranged by Ms. Figueiredo that spanned Mr. Figueiredo’s time with the children.

[5] While Ms. Figueiredo may have achieved some success on this point, I also take into account Ms. Figueiredo’s unilateral and unreasonable conduct in refusing to allow the children to be with Mr. Figueiredo (see, for example, Ms. Figueiredo’s conduct described in paras. 22 – 26 of the reasons on the motions).

[6] Although Mr. Figueiredo made an informal email offer (that I can consider pursuant to r. 18(16), Ms. Figueiredo made no offers, formal or informal.

[7] Given the contested nature of the motions, I fault both parties for failing to make formal offers pursuant to r. 18 (although I do take Mr. Figueiredo’s informal offer into account). Given the nature of family law cases, it should be standard practice to serve offers to settle in matrimonial litigation (see, for example, Karbelnik v. Berk [2001], O.J. No. 1823 (Ont. S.C.J.) at para. 7).

[8] The proper amount of costs payable to Mr. Figueiredo should take into account some divided success on the minor issue of daycare, the fact that no formal offers to settle were made, and Ms. Figueiredo’s unreasonable conduct.

[9] I find that $3,000 is appropriate and I order Ms. Figueiredo to pay forthwith to Mr. Figueiredo for costs of the motions the sum of $3,000 inclusive of HST and recoverable disbursements.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 14, 2013