SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-166
DATE: 2014/07/07
RE: MATS STRIEGLER, Applicant
AND
TERESA KORYCKI, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL:
Cheryl Hess, Counsel for the Applicant
Lorna F. Baldwin, Counsel for the Respondent
Beverley Johnston, Counsel, for the Office of the Children’s Lawyer
HEARD: By Written Submissions
Costs ENDORSEMENT
Overview
[1] This motion was brought by the Applicant seeking an order for the following relief:
a. an interim order for custody for two children, Shelbi Korycki Striegler, born April 23, 1999 and Aiden Korycki Striegler, born April 23, 1999 (the “children”);
b. an interim order that access to the children by their mother be supervised;
c. an order for the parties to equally share the cost of repair and maintenance of the matrimonial home until it is sold; and,
d. an order for the immediate partition and sale of the matrimonial home.
[2] At the motion, supervised access was not pursued. The parties also agreed on the issues relating to the sale of the matrimonial home.
[3] In my Endorsement, I found that the Applicant had been substantially successful on the motion and directed that if the parties were unable to agree on costs, I would receive brief submissions. I have now received costs submissions from both parties.
Position of the Parties
[4] The Applicant claims to have been successful on the motion for contempt and seeks costs on a full indemnity basis in the amount of $17,269.23. The Applicant advances the position that the Respondent was unreasonable in failing to accept the recommendations of the Children’s Lawyer and follow the wishes of her two 16‑year‑old children.
[5] The Applicant submits that this was a very important motion for the parties, which called for the production of extensive materials and required a reply and a factum. He states that the Respondent earns sufficient income and that she is not paying any child support, therefore, she is able to pay costs.
[6] The Respondent claims that the Applicant was not entirely successful on the motion and that he was only successful on the issue of custody. There was cooperation on the issues relating to the matrimonial home and Aiden’s diabetes, and as such, the Respondent acted reasonably.
[7] The Respondent further submits that she acted reasonably in opposing the recommendations of the Children’s Lawyer. Due to the high conflict in the case, it is not possible to state which of the parties was reasonable or unreasonable. Although the Respondent was not more successful than the Offer made via e‑mail, it demonstrates an effort to resolve the issues prior to the motion.
[8] The Respondent states that an award of no costs is appropriate as it would otherwise cause financial hardship to the Respondent.
Factors
[9] For the purposes of this Costs Endorsement, I will not consider the new information provided by the Applicant, which does not fall under the scope of those matters to be considered under Rule 24 of the Family Court Rules.
[10] I start by reference to the presumption that the successful party is presumed to be entitled to costs on a contested motion. I have found that the Applicant was substantially successful and as such, he is entitled to the payment of a portion of his costs incurred for the motion. The scale and quantum of costs remain to be decided.
[11] Rule 24 of the Family Court Rules also calls for the consideration of the following factors: the reasonableness of each party, any Offers 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.
Analysis
[12] While the issues in the motion were not complex from an overall family law context, the proceedings have become very acrimonious as a result of the conflict between the parents and the allegations of parental alienation. For the parties, this was a very important motion.
[13] I agree with the Respondent that based on conflicting affidavits, it is not possible in this matter to conclude that one or the other party has acted unreasonably. I do not find that the Respondent was unreasonable to have opposed the findings of the Children’s Lawyer. Those findings were against her interest, but the Respondent raised legitimate issues worthy of the adjudicative process.
[14] In the end, the decision relating to costs simply turns on the fact that the Applicant was substantially successful and is entitled to the payment of costs on a partial indemnity scale. I find that there are no grounds to warrant either full or substantial indemnity costs.
[15] I find the hours spent by both parties to be high for a motion where there was no questioning. Although there is no issue of proportionality as the Respondent spent more hours than the Applicant, a reduction is appropriate. Further, there is the issue of the Applicant’s reply affidavit. At the motion, the Respondent objected to significant portions of that reply affidavit and the Applicant conceded that a significant portion should be disregarded.
[16] The Applicant claims $14,980.00 on a full indemnity scale. I find the corresponding partial indemnity amount to be $8,239.00. As Rule 24 allows me to use my discretion in awarding costs, I find that the appropriate amount in the circumstances of this motion is $6,000.00 plus HST and plus disbursements of $341.83.
Disposition
[17] The Respondent is ordered to pay costs fixed in the amount of $7,121.83, inclusive of taxes and disbursements. This amount shall be payable from the proceeds of the sale of the matrimonial home.
Mr. Justice Marc R. Labrosse
Date: July 7, 2014
COURT FILE NO.: FC-13-166
DATE: 20140707
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Mats Striegler, Applicant
AND
Teresa Korycki, Respondent
BEFORE: Mr. Justice Marc R. Labrosse
COUNSEL: Cheryl Hess, Counsel for the Applicant
Lorna F. Baldwin, Counsel for the Respondent
Beverley Johnston, Counsel, for the Office of the Children’s Lawyer
costs ENDORSEMENT
Labrosse J.
Released: July 7, 2014