SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-12-2138
DATE: 2013/07/04
RE: Xiao Zhang v. Mei Wang
BEFORE: Mr. Justice Robert J. Smith
COUNSEL:
Peter Liston, for the Applicant, Xiao (James) Zhang
Lawrence Pascoe, for the Respondent, Mei Wang
E N D O R S E M E N T R E G A R D I N G C O S T S
Positions of Parties
[1] Counsel for the respondent wife (“the wife”) seeks costs on a partial indemnity rate in the amount of $8,000.00 plus HST. The applicant husband (“the husband”) submits that he was successful on five of the issues and his wife was successful on three issues. He therefore seeks some costs.
[2] The wife was successful in obtaining an order for interim spousal support in excess of the amount sought but less than the combined amount of spousal and child support requested. The wife was also successful in having her husband maintain dental and medical coverage for her and her daughter. However the respondent wife was unsuccessful in obtaining additional life insurance coverage, was unsuccessful in her claim for exclusive possession of the condominium unit, and was unsuccessful in her claim for interim child support.
[3] The husband was successful on his motion to obtain an order for exclusive possession of the matrimonial home but was unsuccessful in obtaining a preservation order as security for costs.
Factors
[4] The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.
Success
[5] In this case success was divided as both parties were successful and unsuccessful on part of the relief sought in their respective motions.
Complexity and Importance
[6] The issues were of average complexity and involved unique circumstances. The matters were important to the parties.
Offers to Settle
[7] The wife made a reasonable offer to settle which was not signed by her counsel. The husband did not make any offer to settle. However, the wife’s offer was not delivered at least 24 hours before the motion was heard. The wife offered to give the husband exclusive possession of the matrimonial home on June 30, 2013, to have him keep the wife and her child covered under the husband’s medical and dental plan, and to have her named as an irrevocable beneficiary of his life insurance in the amount of $20,000. The wife also offered to accept interim child support in the amount of $500 per month plus $1000 per month of spousal support.
[8] The award of interim spousal support is tax-deductible to the husband, whereas the child support is not tax-deductible. The amount of combined child and spousal support offered by the wife is almost equal to the interim spousal support ordered, however the interim order did not include any child support which did not recognize an ongoing responsibility by the husband to pay support for his wife’s child.
[9] While I find the wife’s offer to settle was reasonable, interim child support was not ordered, the offer to settle was not delivered within the required time period and was not signed by counsel, and success on the motion was quite evenly divided. As a result the there will be no order as to costs.
Disposition
[10] For the above reasons there will be no order as to costs.
R. Smith J.
Released: July 4, 2013
COURT FILE NO.: FC-12-2138
DATE: 2013/07/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Xiao Zhang v. Mei Wang
BEFORE: Mr. Justice Robert J. Smith
COUNSEL: Peter Liston, for the Applicant
Lawrence Pascoe, for the Respondent
ENDORSEMENT REGARDING COSTS
R. Smith J.
ONTARIO
R. Smith J.
Released: July 4, 2013