Soares and Soares, 2015 ONSC 756

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

1On December 11, 2014, I dismissed the applicant’s motion to vary his child support obligation.

2I have now received costs submissions from both parties.

Positions of the Parties

3Ms. 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

4The Family Law Rules provide the following with respect to an award of costs:

24. (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.

5Costs 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

6Ms. Soares has been entirely successful and is therefore presumed to be entitled to costs.

7Ms. Soares made offers to settle, both of which would have been better for Mr. Soares than the result at hearing.

8In 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.

9On 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.

10Although 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.

11Ms. 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.

12There 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.

13In 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