Court File and Parties

COURT FILE NO.: FS-15-84080 DATE: 2016 09 30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Bukasa v. Nyembwe

BEFORE: Van Melle J

COUNSEL: Vincent DePaul Wafo, for the Applicant Mr. Nyembwe in person

HEARD: July 29, 2016

C O S T S E N D O R S E M E N T

[1] Ms. Bukasa seeks costs of $6,593.25 (which include disbursements of $350.00) in connection with the motion argued on July 29, 2016. She claims substantial indemnity costs on the basis that:

a) The motion was originally scheduled for June 21, 2016 but had to be adjourned because the continuing record was not in order; b) Mr. Nyembwe did not provide a factum; c) Mr. Nyembwe has a habit of failing to obey court orders; d) Mr. Nyembwe was ordered on November 2, 2015 to provide his pension/REER information and has not done so; and e) Mr. Nyembwe fails to respect court orders.

[2] None of these factors are at all persuasive regarding costs. As a rule, costs follow the event.

[3] On the motion, Ms. Bukasa submitted pre-separation expenses and expenses that were not section 7 expenses in the first place, as section 7 expenses. Section 7 expenses are those incurred after the date of separation. She also submitted a Spousal Support Calculation which failed to take into account child support that was being paid for one child. These two things were either an error by counsel or an attempt to mislead the court. Either scenario is troubling. In my endorsement relating to the motion I had to go through each improperly claimed expense individually. I also had to run my own Spousal Support calculations. This should not have been necessary.

[4] In the July motion, Ms. Bukasa also sought to annul Mr. Nyembwe’s subsequent marriage to another woman. Even though I had advised Mr. Wafo on June 21 that Ms. Bukasa had no standing to seek an annulment of a marriage to which she was not a party, Mr. Wafo persisted with this request.

[5] In the July motion, Ms. Bukasa was seeking sole custody of Belle-Ange despite the fact that Justice Tzimas on October 19, 2015 had already awarded custody of Belle-Ange to Ms. Bukasa. There was no explanation as to why another custody order would be required.

[6] Ms. Bukasa was successful in her claim for spousal support. She asked that the support be set in accordance with the income that Mr. Nyembwe had set out in his Settlement Conference brief. I reminded Mr. Wafo that Briefs are confidential and do not remain in the court file. He failed to direct me to Justice Tzimas’ endorsement of January 8, 2016. It was only after I reviewed her endorsement that I saw that she had in fact imputed income to Mr. Nyembwe at that time.

[7] Ms. Bukasa sought spousal support of $1200 per month based on Mr. Nyembwe’s imputed income of $70,000 and her own income of $37,000. As I stated earlier this calculation failed to take into account the previous child support order of $639. I did order Mr. Nyembwe to pay $470 per month commencing July 1, 2016.

[8] Regarding the REER I ordered Mr. Nyembwe to provide the information within 15 days failing which Ms. Bukasa could approach the REER administrators directly at Mr. Nyembwe’s expense. Mr. Wafo sets out in his costs submissions that this information remains outstanding. Cost submissions are not the appropriate place to deal with this issue.

[9] There is no reason in this case upon which to award costs on a substantial indemnity basis or indeed on any basis. The motion requests were not reasonable and no realistic Offer to Settle was served. There will be no order as to costs.

Van Melle, J DATE: September 30, 2016