NEWMARKET

COURT FILE NO.: FC-11-038473-00

DATE: 20131122

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEKSANDRA MALUSHAJ, Applicant

AND:

HYSNI MALUSHAJ, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
B. Tseitlin, for the Applicant

E. Gamus, for the Respondent

HEARD: By way of written submissions

COSTS ENDORSEMENT

[1] This costs endorsement follows the ruling of this Court released on September 16, 2013 (Malushaj v. Malushaj, 2013 ONSC 5840).

[2] I have reviewed the written submissions of the respondent dated August 21, 2013, the responding submissions of the applicant dated October 8, 2013, and the reply submissions of the respondent dated October 17, 2013.

[3] Wherever possible, costs should be awarded at every step of the proceeding and this case is no exception. The litigants should understand the real cost of pursuing litigation so that they are in position to continually re-evaluate the reasonableness of the positions taken by them, and be motivated to make all reasonable concessions to settle family disputes swiftly and fairly.

[4] While success on this motion was mixed to an extent, by far the majority of time and effort was focused on the respondent’s income for support purposes. On this issue the respondent was successful, and he would not have been had he not provided an expert’s report.

[5] The respondent’s offer to settle is one which the applicant, responding reasonably, should have accepted to avoid the further costs involved in the motion. It would have provided the applicant with a combined monthly support payment that exceeded that ordered. There are no ongoing section 7 expenses currently that would trigger the proportionate sharing outlined in the offer, and the offer does not commit either party to a payment of such costs without agreement. The respondent did not receive the non-dissipation order that he sought in the offer, except in relation to the proceeds of the matrimonial home, but he obtained the release of funds held in his solicitor’s account, which he also sought in his offer. The only way in which the applicant obtained a more favourable result than that found in the offer was that the order gave her an additional six months access to a vehicle, and did not impute income to her. But while she received an award of spousal support, again, her financial gains were overall less under the court order than they would have been had she accepted the husband’s offer.

[6] The offer was not served one day before the motion and therefore rule 18(14) does not apply, but pursuant to rule 18(16) the court may still consider it.

[7] The failure of the applicant to accept that offer, or to even advance her own, initially or in response, suggests that costs savings was not a significant priority for her.

[8] Wide discretion in fixing costs remains with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 C.A., and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.).

[9] Having reviewed the respondent’s Bill of Costs, I find nothing unreasonable about the amount of time spent by the respondent’s counsel in preparation for and attendance at this motion.

[10] Taking these and all of the factors listed in rule 24(11) into account, costs should be awarded to the respondent approaching substantial indemnity, with a reduction to recognize that he was not wholly successful, and that he himself has taken an unreasonable position in asking that income be attributed to the applicant in her present circumstances. I agree that the costs of the expert’s report should be reimbursed in part at this point, subject to the discretion of the trial judge to reimburse such costs to the applicant if he or she finds such report to be unreliable or of limited evidentiary value, after hearing all of the evidence.

[11] Accordingly, reasonable fees in the circumstances are $4,000 inclusive of H.S.T. and disbursements, including fifty percent of the cost of the expert’s report, for total costs of $21,893.84.

[12] Ability to pay costs is a factor here, and the costs awarded do amount to years’ worth of spousal and child support. The fact that the applicant is currently reliant on the spousal and child support payments as her sole source of income, and is the custodial parent, is a factor in determining quantity of costs.[^1] In this case the support paid is insufficient to raise a family of three and the applicant will have to deplete savings until she otherwise becomes employed. Her latest financial statement does show, however, that she had savings and therefore she has the means to pay costs in lump sum. The costs shall be paid within 30 days.

[13] This court orders that the applicant shall pay costs to the respondent fixed in the amount of $21,893.84 and payable within 30 days.

HEALEY, J.

Date: November 22, 2013

[^1]: Cam v. D.M.