Superior Court of Justice - Ontario
CITATION: Barkan v. Ovodov, 2016 ONSC 6415
COURT FILE NO.: FC-14-2698
DATE: 2016/10/14
RE: Galina Barkan, Applicant
AND
Alexander Ovodov, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Evgeny Kozlov, for the Applicant
James Jeffcott, for the Respondent
HEARD: In writing
Costs ENDORSEMENT
Overview
[1] The Court dismissed the Respondent’s motion requesting an order dismissing the Applicant’s claim for child support. Although the Applicant and the child lived in Russia and the Respondent was subject to a Russian support order, the Applicant was permitted to continue with her support application in Ontario provided that she filed documents confirming that she had ceased enforcement of the child support order in Russia.
[2] If the parties were unable to agree on the issue of costs, they were to provide written submissions.
[3] After considering the submissions and the relevant Family Law Rules, O. Reg. 114/99 (the “FLR”) and jurisprudence, the Court orders the Respondent to pay costs in the amount of $1,019.83 to the Applicant. He has three months to pay this amount.
Applicant’s Position
[4] The Applicant submits that she is the successful party and is entitled to costs of the motion. She submits that the Respondent was unreasonable for failing to resolve the issues and delayed in bringing his motion thereby causing delay in her application.
[5] He was not co-operative in trying to resolve the issues in the matter.
[6] The total fees and disbursements incurred were $7,402.62.
Respondent’s Position
[7] The Respondent denies that he acted unreasonably. Rather, the Applicant delayed in proceeding with her application and resumed proceedings in Russia to obtain an order based on the Respondent’s income. She falsified documents to establish that payments were not made by the Respondent in Russia.
[8] The Respondent’s motion was to proceed on April 28, 2016 and the Applicant’s lawyer required time to prepare responding materials and a factum. The Respondent had to change lawyers as his lawyer was not available for personal reasons. His new counsel was not ready to proceed at the scheduled date and they refused to consent to an adjournment which was granted.
[9] Cross-examinations were arranged and the transcript was not relied upon as he had failed to rely on it.
[10] In addition, he has limited funds, as he has to pay child support in Russia, and has 3 dependents.
Relevant principles
[11] The Ontario Court of Appeal in Serra v. Serra [2009] ONCA 395 stated that the 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.
Analysis
[12] Firstly, the Court finds that the Applicant was successful as the Respondent’s motion was dismissed.
[13] In determining the quantum of costs, the court considers FLR 24 (11).
(i) The importance complexity and difficulty of the issues:
− The issue of jurisdiction and whether the court should assume jurisdiction was of some complexity. The parties submitted numerous leading cases dealing with this issue. An in depth analysis of the cases was required by counsel. In addition, numerous documents from Russia were filed along with translations and the documents were contradictory and required scrutiny.
(ii) The reasonableness or unreasonableness of each party’s behaviour in the case:
− The Court finds that both parties were to some small extent unreasonable. The Respondent delayed in bringing a motion for dismissal. On the other, the Applicant did not file his factum on a timely basis and refused to consent to a required adjournment.
(iii) The lawyer’s rates and the time spent on the motion, expenses incurred, in light of the various issues and case law were reasonable. 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;
− The Applicant’s lawyer was called to the Bar in 2010 and his rate of $250 per hour is reasonable. A review of his bill of costs shows 17.7 hours in preparation for the motion, 8.1 hours for the review and attendance at the motion and 1.4 hours for preparation of bill of costs.
(iv) expenses properly paid or payable;
− The disbursements for the cross-examination and transcript were not helpful to the motion. The costs of translation of $150 and international courier of $95.43 and copies of $24.40 are appropriate. Therefore, the total amount of $269.83 for disbursements is reasonable.
(v) Any other relevant matter
− The Court has considered the Respondent’s ability to pay the costs order (MacDonald v. Magel (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (Ont.C.A.). A party’s limited financial circumstances will not be used as a shield against any liability for costs but will be taken into account regarding the quantum of costs.
[14] In conclusion, the Court has considered the parties’ conduct, the Respondent’s current financial situation and the fact that the Respondent had to deal with two separate hearings in two countries. Therefore the Applicant is entitled to $750 for fees and $269.83 in disbursements (inclusive of HST).
Madam Justice A. Doyle
Date: October 14, 2016
CITATION: Barkan v. Ovodov, 2016 ONSC 6415
COURT FILE NO.: FC-14-2698
DATE: 2016/10/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Galina Barkan, Applicant
AND
Alexander Ovodov, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Evgeny Kozlov, for the Applicant
James Jeffcott, for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
Madam Justice A. Doyle
Released: October 14, 2016