M.I. v. M.C., 2017 ONSC 6500

CITATION: M.I. v. M.C., 2017 ONSC 6500

COURT FILE NO.: 03-FS-282880-0001

DATE: 20171030

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: M.I., Applicant

AND: M.C., Respondent

BEFORE: Mr. Justice M. D. Faieta

COUNSEL: Norman Epstein, for the Applicant

Elizabeth Pacheco, Respondent

HEARD: In writing

COSTS ENDORSEMENT

[1] The Respondent (“Mom”) seeks costs of $17,122.13 inclusive of taxes and disbursements on a full indemnity basis in respect of her successful motion for the amount of child support payable, both currently and retroactively, as well as the payment of section 7 expenses that the Applicant (“Dad”) had not paid since 2015. Dad submits that no more than costs of $1,000.00 should be awarded to Mom.

[2] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Family Law Rules, R.R.O. 1990, Reg. 114. Rule 24 is the primary rule governing costs.

[3] In making a decision on costs, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs: Rules 24(10), (10.1)

[4] Generally, a successful party is presumptively entitled to his or her costs of a motion unless he or she has behaved unreasonably or if success in a step in a case is divided: Rules 24(1), (2), (4), (6).

[5] Rule 24(11) provides that in setting the amount of costs, the court shall consider:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[6] Costs shall be granted on a full indemnity basis where: (1) a party has acted in bad faith: Rule 24(7); (2) a party who makes an offer to settle establishes that he or she has obtained an order that is as favourable or more favourable than the offer: Rule 18(14), (15), (16)

[7] In my view, Mom was successful on the motion and is entitled to costs of the motion. However she is not entitled to her costs on a full indemnity basis on the basis of bad faith as the Respondent’s position and conduct in respect of this motion did not amount to bad faith. Similarly, I do not accept Dad’s position that Mom acted in bad faith throughout. The allegations of bad faith were not supported by evidence and addressed at the hearing of the motion and thus there is no basis to place weight on these submissions. Further, Mom has not discharged the onus of providing the offer to settle made by Mom dated May 18, 2017 meets the test found in Rule 18(14) although, in my view, it nearly approaches the requisite standard.

[8] The issues raised by this motion were not particularly complex or difficult although they were of obvious importance to the parties. Dad takes the position that Mom acted unreasonably in refusing to permit Nadia from residing with her Dad in accordance with her wishes, however her settlement offer makes it clear that Mom had relented on that issue at least one week prior to the hearing of the motion. Dad does not dispute the rates charged by Ms. Pacheco nor the time that she spent on the case, nor the expenses incurred.

[9] In my view, it is fair and reasonable for Dad to pay the sum of $10,000.00 in costs to Mom.

Mr. Justice M. D. Faieta

Released: October 30, 2017