COURT FILE NO.: FC-14-273

DATE: 2015/09/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEMLEM KAHSAI, Applicant

AND

KIDANE HAGOS, Respondent

BEFORE: Shelston J.

COUNSEL:
J. Alison Campbell, counsel for the Applicant

Leonard Levencrown, counsel for the Respondent at motion

Any Mayer, counsel for the Respondent on costs

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] There were four issues before me at the motion. The issues of disclosure and questioning were resolved before the motion. The applicant sought to amend her Application to include a claim for spousal support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. as well as under the Family Law Act, R.S.O. 1990, c. F. 3. This claim was not argued and I granted this relief.

[2] The central issue on this motion was the applicant’s entitlement to spousal support. The respondent defended any such claim arguing that the applicant had no standing to bring such claim under the Family Law Act or The Divorce Act. I rejected that argument and ordered that commencing April 1, 2015, and on the first of every month thereafter, the respondent pay to the applicant interim without prejudice spousal support in the amount of $1,500 per month.

[3] The applicant now seeks costs of $10,000 on a substantial indemnity basis. The respondent argues that the costs should be deferred until the respondent obtains an expert report regarding his income but if there are to be costs awarded, the award should be in the range of $5,000 to $6,000.

[4] Parts of Rule 24 of the Family Law Rules are applicable in this matter:

(a) Under Rule 24(1) there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(b) Despite Rule 24(4), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs in order to pay all or part of the unsuccessful party’s costs. That is not the case in this matter.

(c) Rule 24(5) states that in deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(i) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(ii) the reasonableness of any offer the party made; and

(iii) any offer the party withdrew or failed to accept.

(d) Rule 24(6) states that if success in a step in a case is divided, the court may apportion costs as appropriate.

(e) Rule 24(8) states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

(f) Rule 24(10) states that costs are to be decided promptly at each step of the case by the judge or person who dealt with that step in a summary manner as to who is entitled to costs and to set the amount of costs.

(g) Rule 24(11) states that a person setting the amount of costs shall consider:

(i) the importance, complexity or difficulty of the issues;

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case;

(iii) the lawyer’s rates;

(iv) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;

(v) expenses properly paid or payable; and

(vi) any other relevant matter.

[5] Costs are to be assessed at each step of the litigation as stated by the Ontario Court of Appeal in Islam v. Rahman, 2007 ONCA 622.

[6] In Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the court held that the court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

[7] In Serra v. Serra, 2009 ONCA 395, the court held that family law costs rules are designed to foster three important principles:

(1) to partially indemnify successful litigants for the cost of litigation;

(2) to encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants.

[8] The applicant submits that the respondent’s position regarding the applicant’s entitlement to spousal support was unreasonable and that his conduct was an indication of bad faith. I do not find that the respondent acted unreasonably or in bad faith. He advanced a legal argument that was unsuccessful.

[9] On the issue of support, the applicant submitted an offer to settle dated March 30, 2015 seeking $2,166 per month as spousal support commencing April 1, 2015. The respondent submitted no offer to settle because of “the parties sharply divided positions”. The respondent indicates that his position was an “all or nothing” basis.

[10] The applicant was successful on her motion as she was awarded spousal support and is entitled to costs. The amount of costs must be determined according to Rule 24 of the Family Law Rules.

[11] The applicant’s offer was more than my award. The applicant is entitled to partial indemnity for her costs.

[12] Having decided that the respondent can afford to pay spousal support, I also find that he has an ability to pay costs.

[13] I have reviewed the applicant’s bill of costs including the time spent by Ms. Campbell, Ms. Nadeau Larochelle and the paralegal. I cannot gauge whether the hours spent by the applicant’s counsel on this motion to be excessive as the respondent has not provided his own bill of costs or any evidence as to what time his counsel spent in replying to the motion.

[14] Taking into consideration all the factors in this case, I order the respondent to pay to the applicant costs fixed in the amount of $6,000 inclusive of disbursements and HST payable by November 16, 2015.

Shelston J.

Released: September 17, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: LEMLEM KAHSAI, Applicant

AND

KIDANE HAGOS, Respondent

BEFORE: Shelston J.

COUNSEL: J. Allison Campbell, counsel for the Applicant

Leonard Levencrown, counsel for the Respondent at motion

Any Mayer, counsel for the

Respondent on costs

COSTS ENDORSEMENT

Shelston J.

Released: September 17, 2015