Court File and Parties

Citation: Goetschel v. Goetschel, 2016 ONSC 400 Court File No.: FS-11-17189-0001 Date: 20160127 Superior Court of Justice - Ontario

Re: Willi S. Goetschel, Applicant And: Samira Goetschel, Respondent

Before: Pollak J.

Counsel: Daniel Melamed and Lindsay Mills, for the Applicant Michael Stangarone and Christopher Yu, for the Respondent

Heard: December 1, 2015

Costs Endorsement

[1] I have received and reviewed the cost submissions of both parties. The decision of the court was on a very narrow point and did not consider all of the issues in dispute between the parties. The Respondent claims costs of the motion on a substantial indemnity basis by reason of the Applicant's improper conduct in refusing to pay a costs award of Perkins J.

[2] The Respondent was the successful party on the issue decided by the court. The Respondent submits that the Applicant was warned on many occasions prior to the hearing of this motion that he was in breach of the costs order of Perkins J and that it was unreasonable for him to proceed unilaterally by refusing to pay the costs award. Notwithstanding these warnings, the Applicant proceeded with the motion. The parties did agree at the hearing of the motion that the successful party would be entitled to partial indemnity costs of $3,500. The parties were advised that such agreement would be subject to the rights of the parties to argue the appropriate scale of costs to be awarded. Further, in the court's endorsement, the court held that the Respondent should be given the opportunity to make submissions for an award of costs on a substantial indemnity basis by reason of the improper conduct of the Applicant.

[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] I agree with the submissions of the Respondent that it is appropriate in this case having regard to the conduct of the Applicant, which I have referred to above, and the fact that the Applicant was warned prior to the hearing of the motion that his position in refusing to pay the previous costs award of the court was unjustified and unreasonable, that costs be awarded to the Respondent to be paid on a substantial indemnity basis, in the amount of $10,398, less the $2,000 claimed by the Respondent for the preparation of cost submissions. The parties had an agreement on the specific amount of costs to be awarded to the successful party on a partial indemnity basis. The only issue for consideration by the court is on the appropriate scale of costs. I therefore award costs of $8,398 to the Respondent to be paid by the Applicant.

Pollak J.

Date: January 27, 2016