Court File and Parties
Court File No.: FS-14-19829 Date: 2017-08-08 Superior Court of Justice - Ontario
Re: Ana Filipa da Cunha, Applicant And: Paulo Manuel da Silva Gomes, Respondent
Before: J. Ferguson, J.
Counsel: M. Rabinovitch, for the Applicant K. Hendrix, for the Respondent
Heard: In-writing
Costs Endorsement
[1] This matter was in front of me on June 22nd, 2017 during which time the respondent moved for an order that he would be allowed expanded access to their son Gabriel. The applicant disputed that request and in fact sought an order for supervised access. The applicant also brought a cross-motion to deal with financial issues, mainly unpaid costs. That cross-motion had nothing to do with respect to Gabriel’s best interests and I did not deal with it.
[2] Dr. Morris had provided a lengthy report making certain parenting recommendations “extending” the father’s access. The applicant essentially wanted me to ignore that report. She was not at all focused on Gabriel’s best interests.
[3] The respondent was successful in his motion, to extend access. I indicated that written submissions on costs could be sent to me, and they have now been received.
[4] The respondent seeks his substantial indemnity costs dealing with his notice of motion and the applicant’s notice of cross-motion. I did not deal with the cross-motion and now deal only with the costs of the access motion.
[5] The respondent seeks $25,206.92 on a substantial indemnity basis or $19,207.19 on a partial indemnity basis. This is not a motion that merits substantial indemnity costs.
[6] The respondent seeks an order that costs are payable by the applicant as set-off against the respondent’s outstanding costs award orders of Backhouse, J. and Sachs, J.
[7] Although the applicant did not suggest a number, counsel’s position is that the costs of $25,206.92 or $19,207.19 are excessive and unreasonable for a short motion dealing with access. I agree with counsel for the applicant that I should only award costs for the “access” portion of the motion. I agree but, bluntly put, the applicant’s position was completely unreasonable and not child focused. She appeared to want to control the matter by putting financial issues first.
[8] Pursuant to Rule 24(11) of the Family Law Rules the following factors should be considered in fixing costs:
a. the importance, the complexity and difficulty of the issues;
b. the reasonableness or unreasonableness of each party’s behaviour in the case;
c. the lawyer’s rates, the time spent on the case, and expenses properly paid; and
d. any other relevant matter.
[9] The quantum of costs must be fair and reasonable, including with respect to the expectations of the losing litigant, rather than an exact measure of the actual costs of the successful litigant. Costs must also be proportional.
[10] The issues on the motion were important as they involved expanding parenting time for the respondent with Gabriel. Further, the applicant’s behaviour was not reasonable. Instead of addressing the core parenting issues, she chose to serve a lengthy cross-motion focused on financial issues.
[11] The applicant shall pay costs of $10,000.00 all-inclusive to the respondent. No funds need to be paid. Rather, the applicant may set-off this debt against costs owing to her by the respondent.
J. Ferguson, J.
Date: August 8, 2017