Superior Court of Justice - Ontario
RE: Genevieve Sang Webster, Applicant
AND:
Claudiu Suteu, Respondent
BEFORE: The Honourable Mr. Justice Robert G.S. Del Frate
COUNSEL: Trevor B. Smith, counsel for the Applicant Alex Finlayson, counsel for the Respondent
HEARD: Written Submissions
ENDORSEMENT ON COSTS
1As a result of my ruling dated December 17, 2015, both parties have filed written submissions on the issue of costs.
2The respondent submits that he is entitled to a full recovery since he has been substantially if not totally successful in defending the motion by the applicant and in his cross-motion for security for costs even though the amount that I awarded is less than what was being claimed.
3The respondent submits that total indemnity ought to be awarded since the motion brought was frivolous and lacked any chance of success. As well, the hourly rate has been discounted substantially.
4The respondent is claiming the sum of $7,925 in fees being 63.4 hours at a rate of $125 per hour which is substantially less than his normal rate. As well, the respondent claims HST on the fees at13% being $1,030.38 and disbursements including HST of $1,409.40 for a total of $10,364.78.
5The applicant concedes that the respondent was substantially successful in the defence of the motion and in the cross- motion. However, because of the impecunious situation that the applicant is encountering, and the fact that the motion was brought for the alleged best interests of their child, costs ought not to be awarded at all and, should they be awarded, such costs ought to be a token amount.
6The applicant submits that she acted reasonably at all times and was extremely concerned about the welfare of their child as the access as proposed by Justice Sizman was to take effect.
7Lastly, the applicant submits that she is impecunious and on social assistance. Any further court awards against her will have catastrophic consequences to her since the respondent has no hesitation in bringing contempt applications for her failure to pay past costs awards.
8Rule 24 of the Family Law Rules deals with the issue of costs in family law matters. In Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905, the Ontario Court of Appeal outlines why this rule was enacted. It states that successful litigants should be partially indemnified for the costs of their litigation, to encourage settlement and should discourage and sanction inappropriate behavior by litigants. All of this in the context that any award should be fair and reasonable.
9As I outlined in my reasons for granting security for costs, the applicant is undeterred in her quest to prevent the respondent from having a meaningful relationship with his son. In spite of the opinions of experts and the comments of the trial judge, she still believes that her position is the right one. When sanctioned, she plays the poverty card and continues in her irresponsible approach to the ongoing issues (primarily access) in this litigation. What she fails to understand is that impecuniosity does not grant a litigant the right to unrestricted access to the courts. Such access has to be exercised responsibly and reasonably.
10In my view, the applicant has not taken a realistic and reasonable position either in this motion or in her prior proceedings. Accordingly, costs must be imposed to prevent a continued abuse of the court system.
11In assessing such costs, the factors enunciated in Rule 24 must be considered. I agree with the applicant’s position that the actual issues were not complicated; however the preparation of the materials would have taken more than the normal time necessary considering the extensive prior proceedings.
12I find that the respondent has been more than fair in requesting $125 per hour as opposed to the normal rate of $350. Still, I must consider that this litigation involves custody and that the applicant is impecunious. Accordingly, I award the sum of $6,500 for fees plus the appropriate HST on the fees of 13% being $845 and disbursements inclusive of HST of $1,409.40 for a total of $8,754.40. This amount is to be paid within 60 days.
13Order to issue as per reasons.
The Honourable Mr. Robert G.S. Del Frate
Date: April 5, 2016