SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 832/14

DATE: 2015/10/01

RE: IZAURINDO (RANDY) FREITAS, Applicant

AND:

JOHANA MENDOZA CARMONA, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
Brigitte Gratl, for the Applicant
Modupe Ehinlaiye, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the question of costs and have now delivered their respective submissions on costs. The following is my disposition with respect to the costs of the Applicant’s urgent motion brought on September 3, 2015.

Positions of the Parties

[2] The respondent submits that she should be awarded costs in respect of the motion on a full indemnity basis in the sum of $3,475.25 comprised of preparation fee of $1,800, comprising 12 hours, counsel fee for argument of the motion of $1,200 comprising 8 hours, HST on the fees in the sum of $390 and disbursements comprising photocopies and fax transmissions in the sum of $85.25.

[3] The respondent submits that the issues were important. There was an existing interim order of Justice Campbell granting primary residence of the children to the respondent, however the applicant has continued to interfere with the existing order and submits that it is important for the applicant to understand that orders made by the court were made taking into consideration the best interests of the children and that orders should be complied with. The respondent argues that notwithstanding that there was no urgency as contemplated by the rules, the applicant refused to adjourn the motion for a few days in order to allow the respondent time to instruct her counsel who was on vacation and refused her suggestion that the matter proceed by way of Case Conference.

[4] The applicant submits that he was fully justified in bringing the motion in the manner that he did out of concern for his children and that Justice Campbell’s order implied that a material change in circumstances would be established by proof of alcohol consumption by the applicant or would not otherwise have to be established. The applicant submits that it is not the number of hours that are spent on the case that ought to be taken into consideration; other factors such as the parties’ ability to pay and the parties’ expectations in respect of costs ought to play a part. The applicant submits that he has limited ability to pay a costs award. He also argues that, given that parts of the respondent’s motion were dismissed, no costs ought to be awarded against him, or in the alternative a significantly lower amount than is being sought by the respondent, between $500 and $1000 including HST, ought to be considered.

Positions of the Parties

Guiding Principles

[5] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.), 2003 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

[6] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of Rule 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[8] While the case law requires the Court to consider the means of the parties, the limited financial resources of a party do not necessarily afford immunity from a costs order, but may affect the scale or quantum of costs (see Parsons v. Parsons (2002), 2002 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.) at para. 12).

[9] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Application of the Principles

[10] I see nothing in the circumstances to rebut the presumption that the respondent, as the successful party, should be entitled to costs of the motion. The fact that the applicant may be of limited means does not afford him immunity from a costs order but may affect the quantum awarded.

[11] Although it was necessary on a busy motions day for counsel to attend at court from 9:30 AM until the motion was reached and the argument concluded at approximately 4:00 PM, not all of the time of counsel’s attendance at court on the return date should be recoverable in this case.

[12] Bearing in mind the principle of proportionality, I would allow costs to the respondent on a partial indemnity basis in the sum of $1,500.00 in respect of fees, HST thereon in the sum of $195 and disbursements in the sum of $85.25 for a total of $1,780.25.

Disposition

[13] It is ordered that the applicant pay to the respondent costs in respect of the motion in the total sum of $1,780.25 within 30 days hereof.

D.A. Broad

Date: October 1, 2015