Soares and Soares, 2015 ONSC 756
COURT FILE NO.: FS-11-71244-01
DATE: 2015 02 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ARLINDO RESENDES SOARES and SUSETE SOARES
BEFORE: LEMON J.
COUNSEL: Ms. Marie Davison, for the Applicant
Mr. Pawel Wojtis, for the Respondent
COSTS ENDORSEMENT
The Issue
[1] On December 11, 2014, I dismissed the applicant’s motion to vary his child support obligation.
[2] I have now received costs submissions from both parties.
Positions of the Parties
[3] Ms. Soares seeks costs in the amount of $16,828.69 on a substantial indemnity basis and $11,622.20 on a partial indemnity basis. Counsel for Mr. Soares does not provide a submission as to what, if any, costs should be awarded against her client.
The Law
[4] The Family Law Rules provide the following with respect to an award of costs:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(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.
[5] 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.
(See: Phuong v. Chan 1999 2052 (O.N.C.A.) 1999 46 O.R. (3d) 330.)
Analysis
[6] Ms. Soares has been entirely successful and is therefore presumed to be entitled to costs.
[7] Ms. Soares made offers to settle, both of which would have been better for Mr. Soares than the result at hearing.
[8] In Mr. Soares’ submissions, his counsel includes her Bill of Costs which totalled $22,591.00. Obviously, he would be well aware of the cost of this litigation if he were to be unsuccessful.
[9] On the other hand, Ms. Soares made a number of allegations against Mr. Soares with respect to imputed income. Productions and questioning were required. She has been unsuccessful on that issue.
[10] Although Mr. Soares was slow in providing productions, it may be that this was not entirely his fault. In any event, his productions were up-to-date at the time of the hearing and he has already paid costs for the necessary adjournment to obtained those productions.
[11] Ms. Soares seeks costs of the case conference; however, the authorities are clear that the costs of a case conference are not appropriate for the hearing judge to assess.
[12] There is nothing in the conduct of Mr. Soares that would invite what Ms. Soares refers to as “substantial indemnity” costs. He has simply been unsuccessful.
[13] In all of the circumstances, I order Mr. Soares to pay costs in the amount of $7,500.00. If the costs are not paid, they may be enforced as support by the Director of the Family Responsibility Office.
Lemon J
DATE: February 2, 2015
CITATION: Soares and Soares, 2015 ONSC 756
COURT FILE NO.: FS-11-71244-01
DATE: 2015 02 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SOARES AND SOARES
BEFORE: LEMON J.
COUNSEL: Marie Davison, for the Applicant
Pawel Wojtis, for the Respondent
COSTS ENDORSEMENT
LEMON J
DATE: February 2, 2015