ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
B E T W E E N:
Lubov Volnyansky
In person
Appellant
- and -
Yuri Volnyansky
Galyna Pribytkova, for the Respondent
Respondent
COSTS ENDORSEMENT
Lemon, J.
The Issue
[1] I dismissed Ms. Volnyansky’s appeal. I have now received costs submissions from both parties. Mr.Volnyansky was successful and he seeks costs in the amount of $4,621.38 on a full indemnity basis or $3,495.90 on a partial indemnity basis. Although she was unsuccessful, Ms. Volnyansky seeks costs of $532.00.
Legal Principles
[2] The Family Law Rules provide that there is a presumption that a successful party is entitled to the costs of an appeal.
[3] A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[4] Costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
[5] I am also required to take into consideration what an unsuccessful party would reasonably expect to pay for such a proceeding
[6] At the end of the day, the order should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.
Analysis
[7] Mr. Volnyansky was successful and accordingly the presumption is that he should receive an award of costs. Given that Ms Volnyansky was unsuccessful, costs would not be awarded to her.
[8] The renewal or termination of spousal support was an extremely important issue to both parties.
[9] Although Ms. Volnyansky was unsuccessfull, I do not find that she was unreasonable such as to be a factor in the assessment of costs. While she was wrong in her view of the law and procedure, I believe that she was sincere in her belief that she was entitled to further support.
[10] Neither side made an offer to settle. In the normal course, that alone might be seen to be unreasonable. Given the issue here, however, there was little room for compromise and I do not fault either for failing to make an offer.
[11] Ms. Volnyansky does not appear to have an ability to pay costs. That is but one factor to consider in assessing costs. Although Mr. Volnyansky could afford a lawyer, his means are also limited. He has been successful at both trial and on appeal; no doubt he would expect that it would be just for him to obtain a costs order on the appeal.
[12] At trial, Ms. Volnyansky was ordered to pay $500 in costs as the unsuccessful party; she would be aware that if she were unsuccessful on appeal a further costs order against her was likely.
[13] Although the terms “partial indemnity” and “full indemnity” are terms known to the civil rules, they are not terms known to the family law rules. In any event, I do not see conduct by Ms. Volnyansky such that she should fully indemnify Mr. Volnyansky. In considering what counsel calls “partial indemnity”, the hours spent on this file and the hourly rate are entirely reasonable.
[14] In all the circumstances, I order Ms. Volnyansky to pay costs fixed in the amount of $2,500.00.
Lemon, J.
Released: September 30, 2014
COURT FILE NO.: FS-13-4791-00
DATE: 20140930
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY LAW APPEAL
B E T W E E N:
Lubov Volnyansky
Appellant
- and –
Yuri Volnyansky
Respondent
COSTS ENDORSMENT
Lemon, J.
Released: September 30, 2014