CITATION: Jorda v. Dipa, 2016 ONSC 189
COURT FILE NO.: FS-14-396455
DATE: 20160127
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rosette L. Jorda, Applicant
AND:
Marino Dipa, Respondent
BEFORE: Pollak J.
COUNSEL: Marilou Nejal, for the Applicant
Jason Gottlieb, for the Respondent
HEARD: In writing (14B)
COSTS ENDORSEMENT
[1] I have received cost submissions of the parties further to a consent order of Justice Horkins dated November 31, 2015 that the parties may “make submissions in writing as to the issue of costs". Justice Horkins directed that the cost submissions should be made to the judge who granted the consent order between the parties dated September 21, 2015. The order, dated September 15, 2016, was made by way of a Motion in Writing (14B). The order, which was made on consent, did not address the issue of any costs being payable by either party.
[2] Rule 24(10) of the Family Law Rules directs that promptly after each step in the case the judge or other person who dealt with that step shall decide who if anyone is entitled to costs and set the amount of costs. The Respondent submits that it is not appropriate for the Court to award any costs with respect to the matters addressed in the consent order, and that it is appropriate in this matter that no costs be awarded to either party.
[3] In the case of Glionna v. Giotis, 2013 ONSC 5659, the court reviewed the applicable provisions of the Family Law rules and the principles that are to be applied in arriving at an appropriate costs award in a family law matter. The court summarized some general principles as follows:
[16] An analysis of every family law case should commence with a refresher course on Rule 2 of the Rules which states as follows:
(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.
[4] As well the court referred to the relevant provisions of the rules as follows:
[32] I am required to consider the factors set out in subrule 24 (11) of the Rules which reads as follows:
24 (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.
[33] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11) (b) above). It reads as follows:
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
[5] The Court is of the view that in consideration of the objectives and provisions I have referred to above, and as the parties did not reserve the right to request that any costs be ordered as a consequence of the consent order they have entered into, it is not appropriate for a cost award to be made.
Pollak J.
Date: January 27, 2016