In the Superior Court of Justice at Toronto

Court File No.: FS – 13 – 384850
Date: 2013-10-08

BETWEEN:

Eugeny Svirsky Counsel: Brian J. Burke

Applicant

AND

Elizabeth Svirsky Counsel: Gordon Meiklejohn

Respondent

ENDORSEMENT AS TO COSTS ARISING FROM MOTIONS

HEARD AUGUST 29, 2013

1. On August 29^th, I heard motions brought by both parties and on September 3^rd I released reasons for decision Svirsky v. Svirsky, 2013 ONSC 5564. In paragraph 14 I summarized the issues that were before me and did not distinguish that each party had brought a motion with respect to the appointment of a professional to prepare the Voice of the Child Report and with respect to the contents of the file of Diane Moody. For clarification, the following were before me:

(a) Motion by the Applicant for an order appointing Dr. Ted Horowitz, or Shely Polak or Joanne Vanbetlehem to interview the children and to prepare the Voice of the Child Report for the trial of the issue scheduled to commence October 21, 2013;

(b) Motion by the Respondent for an order appointing Diane Moody, or in the alternative, Joanne Seidel, to interview the children and to prepare the Voice of the Child Report;

(c) Motion by the Respondent for an order approving service of the Answer, Respondent’s Financial Statement sworn February 26, 2013 and Form 35.1 affidavit effective February 26, 2103;

(d) Motion by the Applicant for an order directing Diane Moody to provide a copy of her entire file;

(e) Motion by the Respondent for an order directing Diane Moody to provide to the parties and to the Court at the trial of the issue her notes of her meetings with the children.

2. The Respondent was successful in that I appointed Joanne Seidel to prepare a Voice of the Child Report. She was also successful in that I approved service of the documents effective February 26^th and ordered the Applicant to respond within 10 days. She was not successful in her request that I appoint Dianne Moody and she was not successful in her request that I order the Applicant to file a Reply which might have affected the position he has taken that he has not attorned to the jurisdiction of Ontario. The Respondent was not successful in that, while she did not oppose the production of Ms. Moody’s file vis-à-vis the children, she objected to the production of Ms. Moody’s file as it related to her.

3. The Applicant was not successful in the appointment of his suggested professional for the Voice of the Child Report. He was successful in that I declined to appoint Diane Moody to prepare the Voice of the Children report and he was successful in that I directed Diane Moody to provide a photocopy of the entire contents of her file to each counsel. The Applicant was not successful in that I did approve service of the Answer and related documents.

4. In his written submissions, Mr. Burke asked for costs of $7860 plus HST for the motion for production of Moody’s file and $6000 plus HST for the motion for the appointment of the professional who would prepare the Voice of the Child Report. In his written submissions, Mr. Meiklejohn asked for costs in the amount of $8585 plus HST of $1116.05 plus disbursement of $239.92 for a total amount of $9940.97.

5. I do not intend to review the rationale that each counsel has advanced in support of the request for costs and in opposition to the request by the other side. I understand that each counsel suggests that the opposing client has been acting unreasonably. On July 25^th, Justice Croll ordered a trial of an issue to begin on October 21^st. That has necessitated that matters proceed quickly. I do not agree with either submission that unreasonable behaviour as contemplated by the Family Law Rules has been demonstrated.

6. I do note that an offer to settle dated August 21^st was made on behalf of the Applicant by which he proposed to resolve the issue of Moody’s file. The offer was not accepted. The Applicant achieved the result contemplated by the offer. That attempt towards resolution of an important issue warrants recognition.

7. Success was divided which justifies an order that each party pay their own costs. However in recognition of the attempt to resolve a key issue by a timely offer to settle, a modest costs order is appropriate.

ORDER TO GO AS FOLLOWS:

8. The Respondent shall pay to the Applicant costs of the motion for disclosure of the contents of the Moody file the sum of $1500.00 payable by October 18, 2013.

9. Each party shall bear his/her own costs of all other aspects of the motions heard August 29, 2013 including any prior attendances on such motions.

October 8, 2013

DATE KITELEY J.