Court File and Parties
Newmarket Court File No.: FC-15-48777-00 Date: 20170221 Ontario Superior Court of Justice Family Court
Between: Lori Stein, Applicant – and – Asaf Ben-Haim, Respondent
Counsel: R. Aalto, Counsel for the Applicant M. Ibghi, Counsel for the Respondent
Heard: December 14, 2016
Ruling on Costs
JARVIS J.
[1] This Ruling deals with costs relating to motions for temporary relief heard and decided on December 14, 2016. For convenience of reference the applicant shall be identified as the wife and the respondent as the husband.
[2] The wife sought an Order that attributed to the husband a $55,000 yearly income, child support of $628 a month in accordance with the Child Support Guidelines and $823 monthly spousal support. She also sought disclosure from the husband and his new partner, and life insurance as security for the support payable.
[3] The husband sought disclosure from the wife and an Order for insurance security. Both parties owned policies of life insurance on their lives which the husband was paying.
[4] The outcome of the motions was mixed. The husband's income was determined to be $28,859 a year, on a without prejudice basis. He was ordered to pay monthly table child support in the amount of $226. As the wife conceded an income of $15,000 a year, no spousal support was awarded in the circumstances. Section 7 expenses were allocated proportional to the parties’ incomes. Disclosure, as requested in the wife's Notice of Motion, was ordered as was life insurance as security - the husband being required to continue to pay the premiums on both parties’ policies.
[5] The court found that both parties earned incomes unreported to Canada Revenue Agency.
[6] The wife claims costs of $7,500 although it is unclear from her submissions whether that figure includes HST. Her Bill of Costs discloses total legal fees, disbursements and HST incurred of $11,232.20.
[7] The husband incurred total costs of $15,729.80. He submits that as both parties were successful, no costs should be awarded. Alternatively he should be awarded costs or as a further alternative, any award of costs be deferred to trial.
[8] Neither party delivered an Offer to Settle the motions.
[9] Neither party was as successful as claimed. The court was not persuaded that there should be the income attributed to the husband as argued by the wife. She did succeed on the issue of disclosure but that did not occupy much of the court's time. The husband should have acknowledged more tangibly his support obligations, especially regarding the children. Overall, the wife was the successful party but the contrast between what she claimed for support and what was ordered and the absence of any Offer to Settle merit no more than a token award for costs.
[10] Family law litigants are accountable for their litigation positions: Heuss v. Sarkos, 2004 ONCJ 141, 2004 CarswellOnt 3317; Peers v. Poupore, 2008 ONCJ 615. Acting reasonably and in a cost effective manner are expected. Far too often costs are incurred which are disproportionate to the issues and unwarranted by the range of likely outcomes.
[11] Both parties in this case are persons of very limited resources. Their incomes, whether conceded or attributed, are below or slightly in excess of the poverty line in Canada. Yet they have collectively incurred almost $27,000 in legal expenses for their motions!
[12] The observations of Pazaratz J. in Izyak v. Bilousov, 2011 CarswellOnt 14392, 2011 ONSC 7476, [2011] O.J. No. 5814, [2012] W.D.F.L. 1818, [2012] W.D.F.L. 1819, [2012] W.D.F.L. 1822, 210 A.C.W.S. 143, 7 R.F.L. (7th) 358 (Ont. S.C.J.) are apposite,
In arriving at an overall award of costs which is fair and reasonable, the court must take into account the Applicant’s limited resources – as one of the relevant factors. But I return to the three primary objectives of costs orders:
To partially indemnify successful litigants for the cost of litigation;
To encourage settlement; and
To discourage and sanction inappropriate behaviour by litigants.
It is counter intuitive to suggest that these objectives are less applicable to litigants of modest (or no) means. To the contrary, those who can least afford to litigate should be most motivated to seriously pursue settlement, and avoid unnecessary proceedings. As Glithero J. noted in Balaban v. Balaban, 2007 ONSC 7990, 2007 CarswellOnt 1518 (Ont. S.C.J.), at paragraph 7: “…when a person’s financial position is such that they cannot really afford the cost of litigation, then there is all the more reason to attempt compromise of a meaningful nature.
[13] I agree.
[14] The husband shall pay to the wife costs of the motions in the amount of $1,500 plus HST which shall be enforced as a support Order. This award includes the costs associated with the circumstances associated with the 14B Motion read by McCarthy J. on September 19, 2016 and the parties’ attendance at court on September 28, 2016.
[15] A Support Deduction Order shall issue for the costs awarded.
Justice D.A. Jarvis Date: February 21, 2017