CITATION: Castedo v. Haldorsen, 2016 ONSC 5304

COURT FILE NO.: FC-13-1140-2

DATE: 2016-08-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fabiola Castedo, Applicant

AND

David Justin Haldorsen, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Tanya Davies, counsel for the Applicant

Self-represented

Heard: Written submissions

COSTS ENDORSEMENT

Background

1On June 10, 2016, the court rendered the following decision on a motion brought by the applicant as follows:

• Commencing September 1, 2016, the applicant would pay to the respondent $1000 per month as spousal support; and

• From January 1, 2015 to August 2016 inclusive, the applicant was to pay spousal support in the amount of $800 per month.

2The parties were invited to provide written submissions on costs if they were unable to resolve the issue. The applicant’s counsel provided her submissions and the respondent forwarded an email to the trial coordinator indicating that he cannot afford to pay costs and has been experiencing severe medical challenges.

3After having considered the parties’ written submissions, Family Law Rules, the jurisprudence, the divided success of the parties, there will be no order as to costs. My reasons are set out below.

Legal principles

Legal Principles

4The cost rules are designed for the fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation

(2) to promote the encourage promote and encourage settlement, and

(3) to control behaviour by discouraging frivolous suits if the defences that lack merit.

Fong v. Chan 1999 2052 (ON CA), [1999] O.J. No. 4600 and confirmed in Serra v. Serra [2009] ONCA 395.

5The Family Law Rules 24 creates a presumption of cost in favour of the successful party. Rule 18 deals with the cost consequences of failure to accept offer and allows the court the discretion to take into account any written offer to settle.

Analysis

6In considering the factors set out in 24(11), I have considered the following:

(i) the importance complexity and difficulty of the issues:

The applicant submitted that the respondent was no longer entitled to spousal support. The matter was complex given the 14 year relationship, the respondent’s medical issues, and the applicant’s financial obligations to her new family including two young children. The Court reviewed the facts and law as they pertained to the financial obligations of a payor to the first husband in light of new financial obligations for a second family. The parties had debts from their marriage that the applicant was paying and the respondent was not working full time due to his health issues.

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case.

There are no allegations that either party acted unreasonably during the litigation.

(iii) The lawyer’s rates and the time spent on the motion.

The applicant’s counsel’s rate is $300 per hour and she claims costs on a full indemnity basis in the amount of $8000 plus HST. The rates are reasonable.

7No offers to settle were presented.

Conclusion

8The Applicant was asking for a termination of spousal support retroactive to January 2015. The Respondent was asking for an increase of spousal support in accordance with the Spousal Support Advisory Guidelines. Neither party was successful. The applicant obtained a reduction but not a termination. The court also ordered a review to determine whether the respondent with his training and treatment of his health issues will continue to be entitled to spousal support.

9Therefore, in light of the divided success, there will be no order as to costs.