Akimov v Makhnatch, 2017 ONSC 3528

Case Summary

This endorsement on costs followed a motion to change child support brought by the Applicant, Dmitri Alexander Akimov. The court found divided success on the substantive issues, with some child support adjustments granted and others denied. Despite the divided success, the Respondent, Oxsana Makhnatch, was awarded costs of $750. The court considered the Family Law Rules, the Respondent's genuine offer to settle, and the Applicant's disregard for his financial responsibilities, including substantial arrears and failure to prioritize child support payments. interesting_citations_summary: > The decision applies Family Law Rule 24, which presumes costs for the successful party, and Rule 18, allowing consideration of any written offer to settle. It reinforces the three fundamental purposes of cost rules, as established in *Fong v. Chan* and *Serra v. Serra*: indemnification, promoting settlement, and controlling litigant behaviour. The court emphasizes that even with divided success, a party's unreasonableness in litigation, particularly regarding financial obligations and failure to engage in settlement, can justify a costs award against them. final_judgement: The Respondent, Oxsana Makhnatch, is awarded costs in the amount of $750. winning_degree_applicant: 4 winning_degree_respondent: 2 judge_bias_applicant: 1 judge_bias_respondent: 0 year: 2017 decision_number: 3528 file_number: "FC-12-1754" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3528/2017onsc3528.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Fong v. Chan" url: "https://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html" - title: "Serra v. Serra, 2009 ONCA 395" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html" keywords: - Costs - Family Law Rules - Child support - Motion to change - Offers to settle - Divided success - Litigant conduct areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **COURT FILE NO.:** FC-12-1754 **DATE:** 2017/06/08 **SUPERIOR COURT OF JUSTICE - ONTARIO** **RE:** Dmitri Alexander Akimov, Applicant **AND** Oxsana Makhnatch, Respondent **BEFORE:** Justice A. Doyle **COUNSEL:** Evgeny Kozlov, Counsel, for the Applicant Halia Anna Michalko, Counsel, for the Respondent **HEARD:** In writing --- # Endorsement on Costs [1] On a motion to change brought by the Applicant, Dmitri Alexander Akimov, the Court ordered the following: * there would be no child support adjustment for the years 2014 and 2015; * commencing July l, 2017, Mr. Akimov will pay the arrears accumulated in 2014 and 2015 at $200 per month; * child support was adjusted for the year 2016, and he was ordered to pay $75.95 per month; * commencing January 1, 2017, Mr. Akimov will pay $341.57 based on his annual income of $38,480; and * Mr. Akimov will pay the outstanding s. 7 arrears as per Justice Robertson’s Order set at $1,750 to be enforced through Family Responsibility Office (FRO). [2] If the parties were not able to agree on the issue of costs, they were to provide written submissions by prescribed timelines. The Court is prepared to consider the Applicant’s submissions even though they were late in filing as the Court accepts that the Applicant was preoccupied with his studies. [3] Having considered the parties’ written costs’ submissions, the [Family Law Rules, O. Reg. 114/99](https://www.ontario.ca/laws/regulation/990114) (the “FLRs”), offer to settle, and bill of costs, the Respondent, Oxsana Makhnatch, is awarded costs in the amount of $750. ## Applicant’s Position [4] The Applicant (the moving party), Dmitri Alexander Akimov, submits that there has been divided success and hence each party should bear their own costs. [5] He submits that the motion was necessary to review the child support arrears and to set ongoing support based on his income. He was partially successful in reducing child support for 2016 as he was studying that year and ongoing child support was based on his actual 2017 income. He was not successful in varying child support for 2014 and 2015 and s. 7 expense arrears. [6] The Court did not grant Ms. Makhnatch’s motion regarding disclosure, 2013 arrears and compliance with the terms of an interim order. ## Respondent’s Position [7] Ms. Makhnatch submits that Mr. Akimov was unsuccessful on the majority of the issues. She served an offer to settle contained in a letter dated April 11, 2016 which provided for the following: * That Mr. Akimov provide financial disclosure; * An adjustment of child support payable for 2015 based on his 2015 income; * Mr. Akimov provide information to the FRO in order that it could garnish outstanding child support arrears; * Mr. Akimov would pay $2,250 payment for s. 7 arrears; * Child support would be binding on the estate; * He would comply with the interim Order of Kershman J; and * A variation of access. ## Legal Principles [8] FLR 24 states that there is a presumption that the successful party is entitled to costs. [9] The cost rules are designed to the fundamental purposes: (1) indemnifying successful litigants for the cost of litigation; (2) to promote and encourage settlement; and (3) to control behaviour by discouraging frivolous suits if the defences lack merit. [Fong v. Chan](https://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html), [1999] O.J. No. 4600 and confirmed in [Serra v. Serra, 2009 ONCA 395](https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html). [10] Rule 18 deals with the cost consequences of failure to accept offer, and allows the Court discretion to take into account any written offer to settle. ## Analysis [11] The Court finds that the major issue was the retroactive amount of child support. As stated above, the father was not successful in changing child support for 2014 and 2015 but was successful in changing child support for 2016. On the other hand, the mother was not successful in enforcing an interim order which was superseded by the final order. [12] I have considered the factors set out in Rule 24(11). The issues were not complex but were important to both parties. The child has the right to child support to meet his financial needs. [13] Ms. Mahnatch alleges that Mr. Akimov was unreasonable in not honouring his obligation to pay s. 7 expenses. Rather than paying child support, he took a trip to Florida, attended a NHL game, hosted an expensive wedding and visited Disney World. [14] The Court finds that the father did show disregard to his financial responsibility to child support obligations. [15] The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable. [16] I find that there was divided success. [17] However, Ms. Makhnatch’s offer was a genuine effort to resolve the matter. Even though it did not meet the criteria of a Rule 18 (14) offer, pursuant to Rule 18(16) the Court can consider any written offer to settle. Even though Ms. Makhnatch did not obtain an order more favourable than the final order, there was a genuine effort to resolve issues. In fact, she was successful on the issue of support payable in 2015 as she was prepared to decrease the amount payable based on the amount earned. The Court did not decrease support owed in 2015. [18] On the other hand, the father did not send any offers nor did he respond to the offer. [19] As per Rule 24(6) if success in a step in a case is divided, the Court may apportion costs as appropriate. [20] As discussed in *Serra*, one of the objectives of costs is to encourage settlement and parties should make efforts to do so. In addition, parties are expected to be reasonable in the litigation. Here, Mr. Akimov was in substantial arrears and did not prioritize his child support payments. [21] Therefore, Ms. Makhnatch is entitled to costs in the amount of $750. --- Madam Justice A. Doyle Date: 2017-06-08

citation: "Akimov v Makhnatch, 2017 ONSC 3528" parties: "Dmitri Alexander Akimov v. Oxsana Makhnatch" party_moving: "Dmitri Alexander Akimov" party_responding: "Oxsana Makhnatch" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "costs" date_judgement: "2017-06-08" date_heard: "2017-06-08" applicant:

"Dmitri Alexander Akimov" applicant_counsel:
"Evgeny Kozlov" respondent:
"Oxsana Makhnatch" respondent_counsel:
"Halia Anna Michalko" judge:
"A. Doyle" summary: > This endorsement on costs followed a motion to change child support brought by the Applicant, Dmitri Alexander Akimov. The court found divided success on the substantive issues, with some child support adjustments granted and others denied. Despite the divided success, the Respondent, Oxsana Makhnatch, was awarded costs of $750. The court considered the Family Law Rules, the Respondent's genuine offer to settle, and the Applicant's disregard for his financial responsibilities, including substantial arrears and failure to prioritize child support payments. interesting_citations_summary: > The decision applies Family Law Rule 24, which presumes costs for the successful party, and Rule 18, allowing consideration of any written offer to settle. It reinforces the three fundamental purposes of cost rules, as established in Fong v. Chan and Serra v. Serra: indemnification, promoting settlement, and controlling litigant behaviour. The court emphasizes that even with divided success, a party's unreasonableness in litigation, particularly regarding financial obligations and failure to engage in settlement, can justify a costs award against them. final_judgement: The Respondent, Oxsana Makhnatch, is awarded costs in the amount of $750. winning_degree_applicant: 4 winning_degree_respondent: 2 judge_bias_applicant: 1 judge_bias_respondent: 0 year: 2017 decision_number: 3528 file_number: "FC-12-1754" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3528/2017onsc3528.html" cited_cases: legislation:
- title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law:
- title: "Fong v. Chan" url: "https://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html"
- title: "Serra v. Serra, 2009 ONCA 395" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html" keywords:
Costs
Family Law Rules
Child support
Motion to change
Offers to settle
Divided success
Litigant conduct areas_of_law:
Family Law
Civil Procedure

Court File and Parties

COURT FILE NO.: FC-12-1754 DATE: 2017/06/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dmitri Alexander Akimov, Applicant AND Oxsana Makhnatch, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Evgeny Kozlov, Counsel, for the Applicant Halia Anna Michalko, Counsel, for the Respondent

HEARD: In writing

Endorsement on Costs

[1] On a motion to change brought by the Applicant, Dmitri Alexander Akimov, the Court ordered the following:

there would be no child support adjustment for the years 2014 and 2015;
commencing July l, 2017, Mr. Akimov will pay the arrears accumulated in 2014 and 2015 at $200 per month;
child support was adjusted for the year 2016, and he was ordered to pay $75.95 per month;
commencing January 1, 2017, Mr. Akimov will pay $341.57 based on his annual income of $38,480; and
Mr. Akimov will pay the outstanding s. 7 arrears as per Justice Robertson’s Order set at $1,750 to be enforced through Family Responsibility Office (FRO).

[2] If the parties were not able to agree on the issue of costs, they were to provide written submissions by prescribed timelines. The Court is prepared to consider the Applicant’s submissions even though they were late in filing as the Court accepts that the Applicant was preoccupied with his studies.

[3] Having considered the parties’ written costs’ submissions, the Family Law Rules, O. Reg. 114/99 (the “FLRs”), offer to settle, and bill of costs, the Respondent, Oxsana Makhnatch, is awarded costs in the amount of $750.

Applicant’s Position

[4] The Applicant (the moving party), Dmitri Alexander Akimov, submits that there has been divided success and hence each party should bear their own costs.

[5] He submits that the motion was necessary to review the child support arrears and to set ongoing support based on his income. He was partially successful in reducing child support for 2016 as he was studying that year and ongoing child support was based on his actual 2017 income. He was not successful in varying child support for 2014 and 2015 and s. 7 expense arrears.

[6] The Court did not grant Ms. Makhnatch’s motion regarding disclosure, 2013 arrears and compliance with the terms of an interim order.

Respondent’s Position

[7] Ms. Makhnatch submits that Mr. Akimov was unsuccessful on the majority of the issues. She served an offer to settle contained in a letter dated April 11, 2016 which provided for the following:

That Mr. Akimov provide financial disclosure;
An adjustment of child support payable for 2015 based on his 2015 income;
Mr. Akimov provide information to the FRO in order that it could garnish outstanding child support arrears;
Mr. Akimov would pay $2,250 payment for s. 7 arrears;
Child support would be binding on the estate;
He would comply with the interim Order of Kershman J; and
A variation of access.

Legal Principles

[8] FLR 24 states that there is a presumption that the successful party is entitled to costs.

[9] The cost rules are designed to the fundamental purposes:

(1) indemnifying successful litigants for the cost of litigation; (2) to promote and encourage settlement; and (3) to control behaviour by discouraging frivolous suits if the defences lack merit. Fong v. Chan, [1999] O.J. No. 4600 and confirmed in Serra v. Serra, 2009 ONCA 395.

[10] Rule 18 deals with the cost consequences of failure to accept offer, and allows the Court discretion to take into account any written offer to settle.

Analysis

[11] The Court finds that the major issue was the retroactive amount of child support. As stated above, the father was not successful in changing child support for 2014 and 2015 but was successful in changing child support for 2016. On the other hand, the mother was not successful in enforcing an interim order which was superseded by the final order.

[12] I have considered the factors set out in Rule 24(11). The issues were not complex but were important to both parties. The child has the right to child support to meet his financial needs.

[13] Ms. Mahnatch alleges that Mr. Akimov was unreasonable in not honouring his obligation to pay s. 7 expenses. Rather than paying child support, he took a trip to Florida, attended a NHL game, hosted an expensive wedding and visited Disney World.

[14] The Court finds that the father did show disregard to his financial responsibility to child support obligations.

[15] The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable.

[16] I find that there was divided success.

[17] However, Ms. Makhnatch’s offer was a genuine effort to resolve the matter. Even though it did not meet the criteria of a Rule 18 (14) offer, pursuant to Rule 18(16) the Court can consider any written offer to settle. Even though Ms. Makhnatch did not obtain an order more favourable than the final order, there was a genuine effort to resolve issues. In fact, she was successful on the issue of support payable in 2015 as she was prepared to decrease the amount payable based on the amount earned. The Court did not decrease support owed in 2015.

[18] On the other hand, the father did not send any offers nor did he respond to the offer.

[19] As per Rule 24(6) if success in a step in a case is divided, the Court may apportion costs as appropriate.

[20] As discussed in Serra, one of the objectives of costs is to encourage settlement and parties should make efforts to do so. In addition, parties are expected to be reasonable in the litigation. Here, Mr. Akimov was in substantial arrears and did not prioritize his child support payments.

[21] Therefore, Ms. Makhnatch is entitled to costs in the amount of $750.

Madam Justice A. Doyle Date: 2017-06-08