URIU v. RIVADENEYRA, 2017 ONSC 3180
CITATION: URIU v. RIVADENEYRA, 2017 ONSC 3180
COURT FILE NO.: FC-14-2854-1
DATE: 2017/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMOKO URIU
Applicant
– and –
FRANCISCO RIVADENEYRA
Respondent
COUNSEL:
Michael Rappaport, for the Applicant
Any Mayer, for the Respondent
HEARD: By Written Submissions
SUPPLEMENTARY DECISION REGARDING COSTS OF HAGUE CONVENTION APPLICATION
L. SHEARD, J.
[1] On March 27, 2017, I released my costs decision on the Hague Application brought by the respondent, Francisco Rivadeneyra (“Father”). The Hague Application was heard by Justice Phillips who granted the Father’s application, with costs, but without fixing the amount of costs.
[2] On September 14, 2016 the matter came before me when the applicant, Kimoku Uriu (“Mother”) moved to suspend the Order of Justice Phillips and sought an award of costs. On that date, I dismissed the Mother’s motion on the basis that I had no jurisdiction to stay or vary the Order of Justice Phillips. I also determined that the quantum of the costs awarded to the Father by Justice Phillips would be determined by the trial judge on the Mother’s application. I did not then know that I would be the trial judge.
[3] As it turned out, I was the trial judge on the Mother’s application and was required to determine the amount of the Father’s costs of the Hague Application. I received costs submissions from counsel for the Father and the Mother and fixed the Father’s costs of the Hague Application at $13,267.84 to be paid by the Mother.
[4] By letter dated May 9, 2017, counsel for the Father asked for clarification with respect to the timing of the payment of the costs awarded against the Mother on the Hague Application. At my invitation, counsel for the Mother provided submissions as when the costs awarded against the Mother would be payable to the Father.
[5] I understand from the May 9, 2017 letter from Father’s counsel, that Mother took the position that she was not required to pay the Father’s costs of the Hague Application until I had rendered the trial decision and determined costs. In that way, if the Mother was successful at trial, she would be in a position to set off the costs she was ordered to pay the Father against any costs awarded to her
[6] By letter dated May 18, 2017 counsel for Mother provided his submissions regarding when the costs awarded on the Hague Application should be payable. In those submissions, it is asserted that costs are determined by Rule 24 of the Family Law Rules, (O. Reg 114/99) which do not include a presumption that costs are payable within 30 days. Furthermore, as per the 1998 decision Ontario Court of Appeal decision in Wine v. Fisher, 1998 5213 (ON CA), 42 O.R. (3d) 153, costs of an interlocutory order are payable only at the end of the litigation.
[7] Counsel for the Father referred to the 2005 Divisional Court decision in Sears v. Sears et al, 2005 5863 (ON SCDC) in which the Court held that Rule 57.03 (1) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which superseded the principles set out in Wine v. Fisher.
[8] Rule 1 (7) of the Family Law Rules provides:
If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[9] I accept the submissions of counsel for Mother that Rule 24 of the Family Law Rules do not speak to when costs awarded on an interlocutory matter are to be paid. For that reason it is appropriate to refer to Rule 57.03 (1), which state:
Contested Motion
57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.
(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike out the party’s defence or make such other order as is just.
[10] Neither party raised the issue of when the costs awarded against Mother would be payable and it was never my expectation nor intention that the payment of the costs of the Hague Application would await the outcome of the trial decision. That the Mother would pay those costs regardless of the outcome of the trial was made clear in my costs decision. For example at paragraphs 15 and 16:
[15] Whatever the outcome of the trial, the Father was entirely successful at each stage of his Hague Application.
[16] At the conclusion of the first week of trial, and when it was clear that the trial could not be resumed until 2017, the parties consented to an Order regarding Luca’s custody and access, which was different from the Phillips Order. However, that consent Order does not take away from the Father’s entitlement to costs related to the Orders that he sought and was granted in a Hague Application and made prior to the commencement of trial.
[11] I did not intend to defer the payment of costs or to provide that the costs awarded to Father on the Hague Application be set-off against any costs that Mother might be awarded following the trial decision.
[12] Should there be any ambiguity or lack of clarity on the point, the costs awarded by Justice Phillips and fixed by me were intended to be and were payable by the Mother, within 30 days of March 27, 2017. As payment is now overdue, interest will be payable in accordance with the Courts of Justice Act (R.S.O. 1990, c. C.43, as am.)(2 % per annum).
[13] Should either party seek his or her costs of the submissions related to this supplementary decision, those costs, if any, may be included with the party’s trial costs, to be determined following the release of the trial decision.
L. Sheard J.
Released: May 23, 2017
CITATION: URIU v. RIVADENEYRA, 2017 ONSC 3180
COURT FILE NO.: FC-2854-1
DATE: 2017/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMOKO URIU
Applicant
– and –
FRANCISCO RIVADENEYRA
Respondent
SUPPLEMENTARY DECISION REGARDING COSTS OF HAGUE CONVENTION APPLICATION
Sheard J.
Released: May 23, 2017