Court File and Parties
COURT FILE NO.: FC-16-2406 DATE: 2017/07/31 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Diana Georgieva Yovcheva, Applicant AND Bojidar Lliev Hristov, Respondent
COUNSEL: Self-represented Applicant Gary Blaney, Counsel for the Respondent
HEARD: In writing
Costs Endorsement
ENGELKING. J.
[1] This was a motion by the Applicant for an order that the Respondent be restrained from depleting assets. In my Endorsement of June 13, 2017 I dismissed the Applicant’s motion. I indicated that if the parties could not agree on costs, they could provide written submissions within 15 days of the order. On June 29, 2017, the Respondent forwarded submissions on costs. The Applicant has not done so. I have now considered the submissions received.
[2] The Respondent was the successful party on the motion and is presumed by Rule 24 of the Family Law Rules to be entitled to costs, subject to any offers made by the parties.
[3] The Respondent submits that he made an offer to the Applicant on March 8, 2017, prior to any documents having been prepared in support of the Applicant’s motion, which was originally scheduled to be heard on April 11, 2017.
[4] The Respondent submits that the outcome of the motion was as favourable as his offer of March 8, 2017 in that he agreed that the proceeds of the sale of his property at 29 Emerald Drive in Ottawa would be held in trust by his real estate counsel pending further order or written agreement.
[5] The Respondent also submits that the Applicant has acted in bad faith in that she filed voluminous materials, much of which had little or nothing to do with the motion. He submits that the Applicant is attempting to inflict financial harm on him in the litigation as per S. (C.) v. S. (M.), 2007 ONSC 20279, 2007 Carswell Ont. 3485.
[6] The Applicant also sent an offer to settle to the Respondent, however, her offer dated April 3, 2017 was for, among other things, the Respondent to immediately refrain from depleting his property.
[7] The Respondent is seeking full indemnity costs of $10,960.00 plus HST.
Applicable Law on Costs
[8] Rule 24(11) of the Family Law Rules outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[9] In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time they arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.
[10] Rule 18(14) dictates that a party is entitled to costs from the date of an offer on a full recovery basis if the criteria contained therein are met.
[11] The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 ONCA 14579 at para 26.
Analysis
[12] On June 13, 2017 I found that the Respondent had a prima facie entitlement to costs as the successful party on the motion. The issue that remained was quantum.
[13] The Respondent served an offer to settle on March 8, 2017 which met the criteria of Rule 18(14). The Applicant did not accept his offer. The Respondent obtained an order that was as favourable to him as his offer of March 8, 2017.
[14] The Applicant filed voluminous materials having to do with the Respondent’s income, which included allegations of not reporting same, and of inadequate disclosure. She additionally purported to seek an order restraining the Respondent from depleting his assets to secure future child and spousal support, which is not what is contemplated in s. 12 of the Family Law Act. While I am unable to conclude that the Applicant was intentionally attempting to inflict financial harm on the Respondent or that she acted in bad faith by so doing, the fact of the matter is that the Respondent had to respond to numerous allegations in his materials which were unrelated to the matter before me.
[15] Counsel for the Respondent’s hourly rate is reasonable, and I find that he was very scrupulous in ensuring that the time for which he charged in his bill of costs was related to the motion in question.
[16] The Applicant remains in the matrimonial home in which the Respondent has an approximately $100,000 interest. Additionally, the Respondent has undertaken to maintain the proceeds of the sale of his Emerald Drive property in trust pending further order or agreement. The Applicant’s eventual equalization is largely secured by the value of those two properties. The motion ought not to have happened.
[17] In all of these circumstances, I find that this is a proper case for the Respondent’s costs to be paid at a substantial indemnity rate.
Order
[18] The Applicant shall pay to the Respondent $10,960 plus HST in costs for the motion.
Madam Justice Tracy Engelking