CITATION: MALDINI v. MALDINI, 2016 ONSC 7142

COURT FILE NO.: 51115-16

DATE: 2016/11/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDY ERIN MALDINI, Applicant

AND:

DRAGO (DARKO) MALDINI, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Ronald F.B. Woynarski, for the Applicant

Barry Paquette, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have now delivered their submissions on costs.

Position of the Applicant

[2] The applicant seeks costs on a partial indemnity basis in the total sum of $12,096.93 comprised of fees in the sum of $10,625.25, HST thereon in the sum of $1,381.28 and disbursements and HST thereon in the sum of $90.40.

[3] The applicant submits that she was completely successful in obtaining the relief that she sought on the motion for interim child and spousal support and financial disclosure. She says that she was forced to bring the motion because the respondent refused to pay any support until ordered by the court. She also points out that the respondent did not agree to provide the financial disclosure which she sought until following commencement of submissions. She says that had she not brought the motion, the respondent would not have agreed to provide this disclosure.

Position of the Respondent

[4] The respondent argues that costs on a partial indemnity basis should be awarded to him and not to the applicant. He claims the sum of $11,053.21, comprised of fees in the sum of $9,555.00, HST thereon in the sum of $1,242.15, and disbursements including HST thereon in the sum of $256.06.

[5] The respondent argues that the applicant’s counsel refused to approve the draft order to implement the Consent entered into by the parties respecting interim interim shared parenting of the child, requiring him to bring a motion. He also says that the applicant opposed the release of $5,014.00 from the funds in trust with respect to his capital gains liability, which was ordered by the court. With respect to spousal and child support, the respondent says that he acknowledged his obligation to pay support, but the issue was the quantum of support he was obliged to pay. He also did not dispute the section 7 expenses. He says that the applicant’s position that his support obligation should be based on his 2015 income, when his bonus was twice what it was in 2016, was not accepted by the court. The amount of his income for support purposes, as found by the court, was closer to his position than that of the applicant’s. Moreover, the applicant’s position with respect to retroactivity to January 1, 2016 was not accepted by the court.

Guiding Principles

[6] Pursuant to sub-rule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Sub-rule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer's rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter. These factors are to be applied flexibly (see M. (C.A.) v. M. (D.) 2003 CanLII 18880, (2003), 67 O.R. (3d) 181 (Ont. C.A.) at para 42).

[7] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty, 2009 CanLII 23111 (ON SC), [2009] O.J. No. 1887 (Ont. S.C.J.) at para. 4, citing Sims-Howarth v. Bilcliffe, 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (Ont. S.C.J.)). In the case of Johanns v. Fulford, 2010 ONCJ 756 (Ont. C.J.) at para. 13, it was held that, for the purpose of r. 24(1), "success" is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[8] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[9] While the case law requires the court to consider the means of the parties, the limited financial resources of a party do not necessarily afford immunity from a costs order, but may affect the scale or quantum of costs (see Parsons v. Parsons (2002), 2002 CanLII 45521 (ON SC), 31 R.F.L. (5th) 373 (Ont. S.C.J.) at para. 12).

[10] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

Analysis

[11] It is observed that, although each of the parties delivered offers to settle, none of them satisfied the requirements of r. 18(14) of the Family Law Rules so as to give rise to the costs consequences set forth in that rule. It is also observed that neither party disputed the hourly rates utilized by, nor the amount of time spent by, opposing counsel. The partial indemnity costs claimed by each side are within a comparable range. The quantum of costs claimed by each party can therefore be considered to have been within the reasonable expectation of the other party.

[12] The predominant issue for determination on the motions was interim support, both child and spousal. Although the respondent says that he acknowledged his obligation to pay child and spousal support, the fact is that he did not pay any support voluntarily at any time prior to the order being made. It was necessary for the applicant to bring her motion in order to obtain any support. Although the aggregate monthly amount ordered was closer to the figure proposed by the respondent than that proposed by the applicant, it did exceed the amount that was offered by the respondent. I would therefore consider the applicant to be the successful party on the motion.

[13] I would not consider the failure of the applicant to approve the draft order presented by counsel for the applicant to bear on the question of costs. The two counsel had a principled disagreement on the form of the draft order. Moreover, the parties implemented the parenting regime called for in their Consent and my Endorsement simply formally implemented the Consent which the parties had already acted upon.

[14] However, it is noted that the decision of the court more closely aligned with the position taken by the respondent on the basis on which his income was to be determined, namely on his current year’s income rather than his 2015 income when his discretionary bonus was twice as large. The applicant’s position that the amount shown on the respondent’s earnings statement for expense reimbursement should also be included was not accepted. The order for support was not made retroactive to January 1, 2016 as claimed by the applicant. Finally, the respondent’s claim for release of funds from trust in relation to his capital gains tax liability was also accepted.

[15] I would reduce the fee portion of the applicant’s claim for costs by 30 percent to account for the fact that the respondent’s position prevailed on the issues mentioned in the previous paragraph.

Disposition

[16] It is therefore ordered that the respondent pay to the applicant costs of the motions fixed in the sum of $8,494.96, all inclusive. This amount is to be paid within 30 days hereof.

D.A. Broad, J.

Date: November 22, 2016