Court File and Parties

COURT FILE NO.: FC-16-657 DATE: 2016/05/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEPHANIE De SILVA, Applicant AND DELAN De SILVA, Respondent

BEFORE: Shelston J.

COUNSEL: Emily Comor, counsel for the Applicant John E. Summers, counsel for the Respondent

HEARD: In writing (at Ottawa)

Costs Endorsement

Overview

1On March 31, 2016, the applicant obtained an ex parte order from Justice Beaudoin granting the applicant interim-interim custody of the two children of the marriage, interim-interim exclusive possession of the matrimonial home and a restraining order against the respondent with respect to the applicant and the children, adjourning the return of the motion to April 12, 2016 and reserving the issue of costs until the hearing of the motion.

2On April 21, 2016, I set aside the order of Justice Beaudoin dated March 31, 2016 based on my findings that the applicant had not been completely forthright with the court when she obtained the ex parte order and failed to provide the complete picture, selecting only evidence that supported her claim.

3I ordered on an interim-interim basis the parties to have joint custody of the children; the children to remain in the matrimonial home; the parties to have a two-two-three schedule of time with the children; and that they rotate possession of the matrimonial home. I also appointed the Office of the Children’s Lawyer and ordered an expedited case conference.

4The issue before me is the issue of costs related to the motion on April 21, 2016.

Parties’ positions

5The respondent asserts that he was completely successful in this matter and that he is presumptively entitled to his costs. The respondent seeks costs of $5,661.30. The respondent submits that the applicant acted unreasonably in waiting until he was in Mexico to move for an ex parte order; that she failed to provide the court with material facts on the ex parte motion; that she denied the respondent access to his children; and, finally, that she acted unreasonably in seeking supervised access to the respondent.

6The applicant’s position is that she was partially successful as I made an interim-interim order when the respondent simply sought an order setting aside the ex parte order and made no claim for relief.

7She argues that costs should be fixed at this time, but only payable at the conclusion of the proceedings once the entirety of the evidence including the position of the Office of the Children’s Lawyer is known. Alternatively, any cost award should be minimal given that I made an interim-interim order. The applicant has provided a bill of costs which indicates her costs were $4,869.17 including disbursements of $560.17.

The Law

8Under Rule 24(1) of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

9Rule 24(10) mandates the court to promptly decide in a summary manner after each step who is entitled to costs and to set the amount of costs.

10Rule 24(11) states that a person setting the amount of costs shall consider:

(i) the importance, complexity or difficulty of the issues; (ii) the reasonableness or unreasonableness of each party’s behaviour in the case; (iii) the lawyer’s rates; (iv) the time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order; (v) expenses properly paid or payable; and (vi) any other relevant matter.

11In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), the court held that the court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees, but that the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

12In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, the court held that family law costs rules are designed to foster three important principles:

(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.

Analysis

Success

13With respect to success, the applicant’s position that the ex parte order should continue was rejected in that the order was set aside. The respondent’s position was that the order should be set aside with no order being made. I set aside the ex parte order and replaced it with the schedule allowing both parents to have equal time with their children on an interim-interim basis.

14I find that the respondent was a successful party on the motion and is presumptively entitled to his costs. However, as set out in their jurisprudence, the costs are to only partially indemnify the successful party; they are to discourage and sanction inappropriate behaviour and they are to be fair and reasonable from the view of what a losing party would expect to pay.

Importance, complexity or difficulty

15The issue relating to these two children was very important.

Reasonableness

16Both sides argue that the other party was unreasonable. I find that neither party was unreasonable, but that the parties must take responsibility for their positions taken in the litigation.

Offers to settle

17I also note that neither party made an offer to settle which is unfortunate because the purpose of an offer to settle is to encourage settlement as well as being a factor to be considered by the court in assessing costs. Since neither party made an offer to settle, this factor is irrelevant to this decision.

Lawyer’s rates

18I find that Mr. Summers hourly rate at $300.00 is reasonable based on his 17 years of experience.

Time properly spent

19I have reviewed the time spent. I have withdrawn 1.2 hours for drafting a Case conference brief which was not required for the motion. Further, I find that four hours for research is excessive considering the work could have been done at a significantly lower hourly rate by either a student or a junior lawyer. With respect to the counsel fee of $1,500, the matter was set to proceed at 2 PM in the afternoon and submissions were completed by 4 PM. I note that the respondent’s costs include one hour of preparation for the motion.

Deferral of payment of costs

20The applicant submits that I should defer the payment of costs. In my view, this position runs contrary to the intent of the Family Law Rules which mandate that costs be decided after each step in the litigation process. This rule was confirmed by the Court of Appeal in Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10.

Disposition

21Considering all the factors set out above, I order the applicant to pay to the respondent the sum of $4,000.00 inclusive of HST within 60 days.

Shelston J.