Court File and Parties

Court File No.: FS-13387171 Date: 2017-01-16 Ontario Superior Court of Justice

Between:

JORDAN KOPLOWITZ Applicant – and – LAURA KATHERINE SAVAGE Respondent

Counsel: Corinne A. Muccilli, for the Applicant Alice M. Palumbo, for the Respondent

Heard: Written Submissions

Costs Endorsement

DIAMOND J.:

[1] At the conclusion of my Reasons for Judgment released on October 31, 2016, I invited the parties to exchange and deliver written submissions if they were unable to agree upon the costs of this proceeding. After some delay on the part of the respondent, I have now received and reviewed those written costs submissions.

[2] The applicant seeks his costs of the proceeding (on a partial indemnity up to trial and full indemnity thereafter) in the amount of $87,150.00 plus disbursements and H.S.T. The applicant relies upon his offers to settle made in the proceeding, and argues that the positions taken by the respondent were unreasonable.

[3] The respondent submits that as success was divided there should be no costs awarded. Additionally and/or in the alternative, the respondent argues that the terms of the applicant’s offers to settle were coercive towards her, and her current financial situation ought to be considered when determining any costs award.

[4] In Serra v. Serra, 2009 ONCA 395, the Court of Appeal for Ontario held that modern costs rules are designed to foster three fundamental purposes:

a) to partially indemnify successful litigants for the cost of litigation; b) to encourage settlement; and c) to discourage and sanction inappropriate behaviour by litigants.

[5] As held by Justice Sherr in Oduwole v. Mosses, 2016 ONCJ 653, a costs award should always reflect what the Court views to be a fair and reasonable amount to be paid by the successful party.

[6] Rule 24(1) of the Family Law Rules creates a presumption of costs to be awarded in favour of the successful party. While success at trial was arguably divided, the applicant was nevertheless successful on the primary issues of custody of major decision making for Gabriel and can be viewed as the more successful party.

[7] I have reviewed the applicant’s offers to settle. Those offers were not coercive, and contained elements of compromise. Presumably, the major stumbling block was the applicant’s proposal that he make all major decisions concerning Gabriel. However, while many of the terms therein were in fact achieved by the applicant in my Reasons, there are several other terms that I did not order including a requirement that both parties agree to service and repay a debt allegedly owed to the applicant’s parents (a fact which I was not asked to decide at trial). As such, I do not believe that any costs, if awarded, ought to be ordered on a full indemnity basis.

[8] I have reviewed the applicant’s Bill of Costs. While the hours charged therein are for the most part reasonable, I am nevertheless guided by the comments of Justice Chappel in Wallegham v. Wallegham, 2015 ONSC 8066:

“Finally, in cases involving custody and access claims, a more tempered approach to costs may be appropriate depending on the circumstances of the case. The rationale for this is that parties should not be discouraged from advancing bona fide custody or access claims that are meritorious out of fear of possible deleterious financial consequences.”

[9] At paragraph 100 of my Reasons, I found the respondent’s income for both 2015 and 2016 to total $27,000.00 each year. While a costs award in favour of the applicant is warranted, to order the respondent to pay the applicant his costs in the amount sought would be prohibitive, and simply not in Gabriel’s best interests. I have little doubt in concluding that a substantive costs award would not only create a financial hardship for the respondent, but more importantly adversely impact both her and Gabriel in their efforts and desire to comply and live within the parenting and access plan as ordered in paragraph 95 of my Reasons.

[10] Notwithstanding, I find that it was still reasonable for the respondent to expect that she would be required to pay some portion of the applicant’s costs in the event she was the unsuccessful party at trial. Accordingly, in the circumstances of this case I order the respondent to pay the applicant his costs of the proceeding on a partial indemnity basis in the all-inclusive amount of $15,000.00 payable within 45 days.

Diamond J. Released: January 16, 2017