COURT FILE NO.: FC-18-56488-00 DATE: 20190402 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mahsa Mizrahi, Applicant AND: Jan Mizrahi, Respondent
BEFORE: Nicholson J.
COUNSEL: Meghan Lawson, for the Applicant Jan Mizrahi, Self-Represented Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1] The Applicant, Mahsa Mizrahi (“Applicant Mother”) and moving party on the motion, seeks costs of $13,195.01 for the two appearances for the motion on January 16, 2019 and February 20, 2019.
[2] The Respondent, Jan Mizrahi (“Respondent Father”), argues that he should be paid his costs of $4,200.00.
[3] This was a motion for temporary child and spousal support. The Applicant Mother requested orders for child support in the amount of $26,700 per month and spousal support of just over $32,000 per month. The Respondent Father on the other hand offered to pay child support of $10,634 per month and spousal support of $7700 per month. At the motion I ordered that the Respondent Father pay $18,800 per month for child support and $15,000 per month for spousal support. I also reapportioned the section 7 expenses and required the Applicant Mother to pay the cost of the residence in which she was living with the children.
The Law
[4] 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 under subrule 2 (2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867.
[5] Rule 24 of the Family Law Rules guides the analysis of costs decisions.
[6] The following subparagraphs of Rule 24 are relevant:
(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24 (10).
(11) A person setting the amount of costs 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. O. Reg. 114/99, r. 24 (11).
[7] Further guidance is provided by section 131 (1) of the Courts of Justice Act which provides:
- (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1)
Analysis
[8] The following factors require some comment.
Success
[9] Although the Applicant Mother was successful in obtaining orders for child and spousal support, the global amount awarded by me was $25,000 less per month than she was seeking. My order was $16,000 more per month than what the Respondent Father was proposing. As such, I consider the Applicant Mother partially successful in this motion.
The importance, complexity or difficulty of the issues in this proceeding.
[10] I find the issues in this proceeding were important but not complex, save and except the issue of the Respondent Father’s income.
Unreasonable conduct
[11] Both parties had submitted offers in an effort to resolve the matter, however, none of the offers were close to the end result. The Respondent Father was unreasonable in rejecting the opinion of his own expert regarding his income. The Applicant Mother was unreasonable in the amount of temporary support she was seeking in light of her proposed budget. Her proposed budget was $33,000 per month and she was asking for combined support of $58,000 per month, $25,000 in excess of the budget. In the final analysis after trial it may be appropriate to seek an equal division of disposable income, however, for a temporary order, such a request was unreasonable.
[12] Having considered all of the factors outlined in Rule 24 and considering the four fundamental purposes of costs rules, I find that the Applicant Mother is entitled to costs for the January 16, 2019 and February 20, 2019 appearances of $7,500.00 all inclusive, to be paid within 60 days.
The Honourable Mr. Justice P. W. Nicholson