Court File and Parties

Court File No.: FC-16-2356 Date: 2018/11/05 Superior Court of Justice - Ontario

Re: Julia Smoak-Huszar, Applicant -and- Tomi Huszar, Respondent

Before: Justice P. MacEachern

Counsel: Michael Wonham, for the Applicant Ross Stewart, for the Respondent

Heard: In Writing

Costs Endorsement

Overview

[1] This is the decision on costs following my decision in Smoak-Huszar v. Huszar, 2018 ONSC 5223.

Positions of the Parties

[2] Ms. Smoak-Huszar seeks costs on a partial indemnity basis in the amount of $2,288.77. Her total costs are $3,816.29, supported by her counsel’s bill of costs. She argues that she was the successful party on the motion.

[3] Mr. Huszar takes the position that success on the motion was divided and no order for costs should be made.

Analysis

[4] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 recently confirmed that the modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules).

[5] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

[6] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs: M. (C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.

[7] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

“(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter.”

[8] The two main issues on the motion, that involved the most time and costs, were the issue of spousal support and the choice of school for the youngest child. On balance, the issue of spousal support was more involved.

[9] I find that Ms. Smoak-Huszar was successful on the issue of spousal support. There was divided success on the issue of the youngest child’s school. Ms. Smoak-Huszar was more successful than Mr. Huszar on the issue of the return to the equal parenting schedule. Ms. Smoak-Huszar is presumptively entitled to an award of costs.

[10] I find that Ms. Smoak-Huszar’s conduct was, however, not reasonable to the extent that she failed to communicate with Mr. Huszar with respect to the youngest child’s school and the parenting schedule in a timely and reasonable manner. Mr. Huszar’s communications on that issue were also lacking, and for that reason I find that each party should bear their own costs with respect to the school issue and the issue of the return to the equal parenting schedule.

[11] The issue of spousal support was a significant issue between the parties, and I find that Ms. Smoak-Huszar did not act unreasonably with respect to that issue. As she was the successful party on that issue, she should be entitled to an award of costs.

[12] Having considered the reasonableness and proportionality of the relevant factors, as well as the portion of costs that should relate to the spousal support issue, I order that Mr. Huszar pay Ms. Smoak-Huszar costs of this motion fixed in the amount of $1,200, payable forthwith.

Justice Pam MacEachern Released: November 5, 2018