Beyer v. Palacios, 2016 ONSC 1242

CITATION: Beyer v. Palacios, 2016 ONSC 1242

COURT FILE NO.: FS-14-19554

DATE: 20160219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Piotr Beyer, Applicant

AND:

Rebeca Palacios, Respondent

BEFORE: Kiteley J.

COUNSEL: Monika Curyk, for the Applicant

Darlene M. Rites, for the Respondent

HEARD: in writing

ENDORSEMENT AS TO COSTS

[1] On August 25, 2015 I heard a motion with respect to school registration for the parties’ then 4 year old child and I released the endorsement on August 28 [2015 ONSC 5402]. I indicated that if by September 11, 2015 the parties had not agreed as to costs of the motion then counsel for the Applicant would make written submissions by September 18 and counsel for the Respondent by September 25. The written submissions by counsel for the Applicant are dated September 16, 2015 and those by counsel for the Respondent are dated September 24, 2015. Regrettably, they only recently came to my attention.

[2] Counsel for the Applicant asked for costs in the amount of $5,032 (for fees, disbursements and HST). Counsel for the Respondent conceded that the Applicant was successful and was entitled to costs but took the position that a reasonable amount was $500 payable at the rate of $50.00 per month.

[3] As indicated in the earlier endorsement, the Applicant was successful and is presumed entitled to costs. The bill of costs reflects services performed between July 27, 2015 and August 25, 2015 in the amount of $8,747 and disbursements in the amount of $150 together with $500 allocated to costs submissions. Counsel takes the position that the Applicant should receive 50% of the fees incurred between July 27 and August 19 in the amount of $3,213 and 70% of fees after August 20 in the amount of $1,669. Along with disbursements of $500, the total claimed is $5,032.

[4] On August 10, 2015, the Respondent made a written offer to settle and on August 17, 2015, the Applicant made a written offer to settle. His offer was made a week before the hearing on August 25 and is consistent with the order I made in that it provided that the parenting schedule contained in the order dated January 15, 2015 would continue until settled or trial; the child would not attend junior kindergarten during the school year of 2015/2016; and the schedule for December 24 to 26 would be modified.

[5] I agree that: that offer is consistent with rule 18(4) and (14) and justifies an increased recovery of costs after it was served; that the matters were of considerable importance; and that the time spent by counsel on behalf of the Applicant was reasonable.

[6] The position taken on behalf of the Respondent is that, at that time, she was on social assistance and had a legal aid certificate; that the Applicant had not paid proper child support in 2014; and that the Applicant had a home and significant savings while she was struggling to support herself. In an endorsement dated January 15, 2015, I ordered that the Respondent pay costs of that motion in the total amount of $750 per month commencing March 1, 2015 at the rate of $50 per month. The Respondent did not comply and at paragraph 40 of the August endorsement, I ordered that she pay $50 per month commencing October 1, 2015. Her counsel observed that another costs award could negatively impact on her ability to provide for the child.

[7] I agree that the Respondent’s circumstances are relevant. However, weighed against that is that she refused an offer to settle that was made a week before the hearing of the motion. Litigants of modest means have the same obligation to consider offers and to act reasonably as those with greater means. I will reduce the amount to reflect her financial circumstances but only by about 20% overall to take into consideration the offer to settle.

[8] At paragraph 41 of the August endorsement, I scheduled a Trial Management Conference before me on October 30. I understand from the case history maintained by the court staff that on the date counsel received the endorsement they adjourned that TMC on consent and have not subsequently scheduled it. The order made in January 2015 was temporary. The order made in August was also temporary and, at paragraph 28 contemplated a trial. It was optional whether the child went to school in September 2015 but it is not optional for September 2016. It is important that the parties arrive at a consensus as to the fall 2016 without having another motion on the same subject. Since the parties adjourned the TMC that I set, I will not schedule another one. But I encourage counsel to arrange a case conference, settlement conference or trial management conference in the near future to determine what issues remain outstanding.

ORDER TO GO AS FOLLOWS:

[9] The Respondent shall pay to the Applicant costs in the amount of $4000.00 payable immediately and at no less than $50.00 per month starting in the month after payment of the costs referred to in paragraph 6 above.

Kiteley J.

Date: February 19, 2016