CITATION: Aston v. Matwee, 2016 ONSC 601

COURT FILE NO.: FS-14-81792

DATE: 2016 01 26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BARBARA JEAN ASTON

Applicant

• and -

RONALD MATWEE

Respondent

Counsel: Elliot Birnboim, for the Applicant Noel A. Nolasco da Silva, for the Respondent

HEARD: In writing

ENDORSEMENT ON COSTS

EMERY J.

1The applicant Barbara Jean Aston was unsuccessful on her motion to obtain an order granting her exclusive possession of the matrimonial home where she cohabits with the respondent Ronald Matwee. Mr. Matwee now seeks his costs as the successful party in the amount of $13,702.77 for that motion.

2A motion for exclusive possession is an all or nothing proposition. Compounding the definitive nature of the relief Ms. Aston was seeking is the consequence that Mr. Matwee would have been excluded from occupying the home he has lived in for 38 years if the court had granted the order.

3In a family law case, the court must follow Family Law Rule 24 in all aspects of making a costs award. Family Law Rule 24(1) provides a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. Here, Mr. Matwee was clearly the successful party as Ms. Aston’s motion against him was dismissed.

4When setting the quantum of costs, the court is directed to consider the factors set out in Family Law Rule 24(11). When setting those costs, a judge is exercising his or her discretion given by Section 131 of the Courts of Justice Act to award the costs of, and incidental to, a proceeding or a step in that proceeding. This discretion is subject to the provisions of a statute or rules of court. As the Family Law Rules are rules of court applicable to family law proceedings, my discretion to award costs is modified by Family Law Rule 24(11) that mandates that I consider the following factors:

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. O. Reg. 114/99, r. 24 (11).

5Family Law Rule 24(11) also requires me to consider any other relevant matter. I speak of two other relevant matters here that are relevant to this costs award.

6First, Fong v. Chan, (1999) 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) sets out the three fundamental purposes that the modern costs rules are designed to serve:

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.

7The same three purposes for the modern costs rules have been recognized as applicable to family law proceedings in Serra v. Serra, (2009) ONCA 395.

8Second, it is a fundamental principle in the law of costs that the court should only grant what is a fair and reasonable amount for costs. A measure of what is fair and reasonable is generally considered to be what the unsuccessful party should reasonably expect to pay as those costs: Boucher v. Public Accountants Council for the Province of Ontario et al, 2004 CanLII 14579 (ON CA), [2004] 71 O.R. (3rd) 291.

9I have considered the importance, complexity or difficulty with the issues on the motion as required by Family Law Rule 24(11)(a). The issues on the motion were of great importance to each of the parties. Ms. Aston was seeking to exclude Mr. Matwee from his possession and occupation of the matrimonial home. Mr. Matwee was fighting to remain in occupation and possession of the home he owns and in which he has resided for 38 years.

10The issues on the motion were of moderate complexity in both the evidence filed and the argument made in court. The motion required a careful consideration of how the concept of non-physical “violence” under section 24(3)(f) of the Family Law Act has been accepted by the authorities to include psychological abuse by one spouse of another deserving of the protection of the court. The issues required the court to then apply the law to the evidence on the motion.

11I find that Ms. Aston’s behaviour in terms of the evidence that she gave, and the position she took on the motion was unreasonable under Family Law Rule 24(11)(b). I make this finding having regard to options available to her that include relocating her own residence to a property owned by herself or a family member in due course, or cooperating with Mr. Matwee to sell the property in Florida they own together. This would provide her with a capital asset capable of generating income to meet rent or expenses, or to use as a down payment for a new home. In my view, Ms. Aston did not provide an adequate explanation about why neither of these options were chosen.

12I have considered the lawyers’ rates and the time spent on the motion under Family Law Rule 24(11)(c) and (d) in reference to the bill of costs submitted by Mr. da Silva on behalf of Mr. Matwee. I decline to award costs on a full recovery basis because I have been referred to no offer to settle to bring Family Law Rule 18(1) into play. I am therefore awarding costs based on $300 an hour for Mr. da Silva’s time on a partial indemnity basis, and $100 an hour on a partial indemnity basis for the time expended by his law student and law clerk on the motion. I am also reducing the time spent by Mr. da Silva on the motion under Part 4 of the bill of costs from 18.6 hours to 15 hours as it is unclear from the language in the information block for that time whether there was any overlap with the receipt and review of the applicant’s motion and the preparation of the respondent’s factum under Parts 1 and 3 of the bill of costs.

13I conclude that $8,000 all-inclusive would be fair and reasonable for the court to award for the costs of the motion to Mr. Matwee. I also consider that amount to be in keeping with what Ms. Aston should have reasonably expected to pay as the unsuccessful litigant. Those costs also serve the first and third purposes of the modern rules for costs set out in Serra v. Serra.

14Having applied all of these principles, I award costs to Mr. Matwee for this motion on a partial indemnity basis, fixed in the amount $8,000 all inclusive. Those costs are payable by Ms. Aston on or before April 30, 2016, unless by that date the parties have entered a binding agreement of purchase and sale with a purchaser for the property in Florida to close no later than June 1, 2016. In that event, the costs shall be paid from her share of the net proceeds of sale forthwith upon closing.

EMERY J.