NEWMARKET
COURT FILE NO.: FC-14-46186-00
DATE: 20151124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mikhail Rayzberg
Applicant
– and –
Polina Bakhmatch
Respondent
Ernst Ashurov, Counsel for the Applicant
Respondent, Self-represented
HEARD: In writing
RULING ON COSTS
JARVIS J.:
[1] This Ruling relates to the costs of a Motion heard on September 30, 2015. Reasons were released on October 15, 2015.
[2] The mother brought a Motion to change a temporary Order made by Gilmore J. dealing with custody and child support, a restraining Order and compelling the father’s compliance with an earlier disclosure Order of the court. On the principal issues argued dealing with custody, section 7 child support expenses and the restraining Order, the mother was unsuccessful. She achieved modest success with respect to adjusting the structure of Gilmore J.’s Order dealing with base child support, a contribution by the father to the children’s dental care and eyewear costs and very limited success with respect to the disclosure issue she raised. As noted in my Ruling, the mother’s Motion was brought after completion of a section 112 OCL investigation report, to which the father filed a comprehensive objection, and notwithstanding that there was a Settlement Conference scheduled for December 8, 2015.
[3] The husband, in my view, was successful in resisting the mother’s claims on which most of the argument, and the voluminous material she filed, proceeded.
[4] Neither party made an Offer to Settle.
[5] The husband claims full indemnity costs of $10,736.13 or, alternatively, partial indemnity costs of $7,515.29, both sums inclusive of disbursements and HST. The total time recorded was 25 hours. There are no details as to whom, apart from counsel, performed the services rendered nor is there information about hourly rates.
[6] By contrast, the mother’s Bill of Costs reflects 68 hours of time spent at a rate of $48 an hour, resulting in full indemnity costs of $3,433.56 and partial indemnity costs of $2,403.49, both also inclusive of disbursements and HST. The mother’s position is that as there was divided success, each party pay their own costs or, in the alternative, that costs be denied to the father due to (she contends) his unreasonable, bad faith, behaviour. She also maintains that she does not have the ability to pay costs, relying on M.(C.A.) v. M.(D.) (2003), 2003 18880 (ON CA), 43 R.F.L. (5th) 149, [2003] O.J. No. 3707 (Ont C.A.), and that any such award must take into account its impact on the children: Chadha v. Chadha, 2006 ONCJ 345. A number of other cases were referenced.
[7] As observed by the Court of Appeal in Serra v. Serra, 2009 ONCA 395, modern costs rules are designed to foster three fundamental purposes: (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 overall objective in determining costs is fixing an amount that the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 48 C.P.C. (5th) 56, 188 O.A.C. 201, [2004] O.J. No. 2634, 2004 CarswellOnt 521 (Ont.C.A.). Since the primary objective of the Family Law Rules is to enable the court to deal with cases justly, it is incumbent on parties who, by choice or necessity, litigate to act reasonably and in a cost effective manner. This means that family law litigants are responsible, and accountable, for the positions they take in their litigation: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317, and Peers v. Poupore, 2008 ONCJ 615, 2008 O.N.C.J. 615 () (Ont. Ct.).
[9] Family Law Rule 24 governs the awarding of costs. Subrules (1), (6), (10) and (11) are relevant to this matter, and they provide as follows
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
(11) 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.
[10] While the mother achieved modest success in adjusting Gilmore J.’s Order and with respect to the children’s dental and eyewear costs, and some disclosure, far too much time was spent on unsuccessfully pursuing what I described was tantamount to summary judgment relief.
[11] It merits comment that the mother is no stranger to the court process. The last three Rulings of this court have ordered that she pay the father costs totalling $5,650, in one Ruling even prohibiting her from bringing any further Motions until costs were paid. The mother is, in my view, well aware of the risks of unreasonable litigation behaviour.
[12] In this case, there should be a costs award in favour of the father but the amount should be reduced from what would otherwise have been higher due to the absence of an Offer to Settle and the father’s failure, or refusal, to provide the remaining disclosure that was within his ability to obtain. On the other hand, the mother has persisted in bringing Motions, mostly without success, or with marginal chances of success, then excuses her litigation behaviour by either blaming the father or shielding herself by pleading the financial impact of a costs award on the children.
[13] In my view, any award of costs should sanction inappropriate litigation behaviour but that should be tempered by the mother’s financial circumstances. I therefore award the father costs in the amount of $4,000, of which $2,000 shall be paid within 30 days of the release of this Ruling, and payment of the balance deferred, without interest, until the conclusion of any trial in these proceedings, this amount to be taken into account by the trial judge when determining the support issues or other costs of these proceedings as a credit to the father, in that judge’s discretion.
Justice D.A. Jarvis
Date Released: November 24, 2015