Court File and Parties

BARRIE COURT FILE NO.: FC-18-0438-00

DATE: 20180619

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anastasiya Kabiya, Applicant

AND:

Ishrif Kabiya, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: P.H. Portman, Counsel for the Applicant

J.D. Harris-Lowe, Counsel for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The parties appeared before me on April 26, 2018. This was a return of motion previously dealt with McCarthy J. on April 12, 2018.

[2] In his endorsement of April 12, 2018, McCarthy J. gave temporary relief to the applicant, but adjourned the matter to April 26, 2018. With respect to costs he noted:

I am not prepared to award costs today. The A moving party continues to seek the indulgence of the court. The order given today is temporary only and no substantial adjudication of the property issues has taken place. The issue of costs is deferred to the motion judge hearing and disposing of the matter on a fulsome evidentiary basis.

By the time the matter returned before me on April 26, the respondent had retained counsel and a consent was arrived at. The issue of costs was reserved for submissions. I have now received submissions from the applicant and the respondent.

The Applicant’s Position

[3] The applicant seeks costs in the amount of $6,763.32 for costs up to the April 12, 2018 motion, together with a further sum of $2,208.89 for costs up to the April 26, 2018 return of motion. As to the events of April 26, the plaintiff submits:

On April 26, 2018, the applicant’s agent engaged in discussions with the respondent’s newly retained counsel, Mr. J. David Harris-Lowe, and the parties were able to come to temporary and without prejudice Minutes of Settlement.

The Respondent’s Position

[4] The respondent submits that each party should bear their own costs for these proceedings, noting that there was no offer to settle served in this matter, stating in its submissions at para. 14:

The applicant was only partially successful. The respondent did consent to remain away from the matrimonial home with the understanding that there is an order requiring the applicant to pay for the cost of remaining in the matrimonial home – which she refused to do before she terminated negotiations.

[5] The Rules of Civil Procedure provide considerable discretion in fixing costs. The Family Law Rules provide at para. 24 “There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

[6] To the parties’ credit, they negotiated a settlement prior to the return of the motion on April 26, 2018, so the disposition of the matter as contemplated by Justice McCarthy on a “fulsome evidentiary basis” was not required. However, it is clear that the applicant did have some success before McCarthy J. on a contested motion before him.

[7] Under the circumstances, I am prepared to consider a costs aware for the applicant with respect to that step of the proceeding, which occurred before McCarthy J., for which the issue of costs was reserved. I have reviewed the Bill of Costs and considered the submissions of the respondent with respect to the appropriateness of costs. Given the partial success of the applicant on the previous motion, I award costs in the amount of $3,000, all inclusive, payable by the respondent to the applicant forthwith.

MULLIGAN J.

Date: June 19, 2018