Ontario Superior Court of Justice

Court File No.: FS-16-86418-00 Date: 2020-06-08

Between:

Elzbieta Kostyrko, Applicant M. Curyk, Counsel for the Applicant

- and -

Andrij Kostyrko, Respondent G. Hunter, Counsel for the Respondent

Heard: In Writing

Reasons for Decision

Before: Lemay J

[1] This is a matter that came before me as an urgent motion. I heard the matter on April 7th, 2020 and released written reasons on April 9th, 2020 (see 2020 ONSC 2190). It is now time to fix the costs for the motion, as well as addressing the terms of the Order to be signed.

The Terms of the Order

[2] The parties were directed to agree on the terms of the final order. They were able to agree to most of the terms. However, there were two outstanding issues:

a) The police enforcement clause. b) Whether the Order is a temporary or a final Order.

[3] The version of the police enforcement clause proposed by the Applicant is both lengthy and broad. The version proposed by the Respondent, on the other hand, is verbatim what was included in my decision. I am of the view that the version proposed by the Respondent is to be preferred, as it represents more clearly what I intended. The version proposed by the Applicant is overly broad and may very well cover circumstances that I did not intend for it to cover.

[4] In terms of whether the Order is a temporary or a final order, it finally disposes of the motion, and returns the parties to the state where they are continuing to be bound by a final Order that they signed almost two years ago. In my view, the Order I made was a final order.

[5] I have signed a final version of the Order incorporating these terms and the agreed-to terms between the parties and attached a copy to these reasons. The original will be filed with the Court office when it reopens.

Costs Issues

a) Positions of the Parties

[6] The Applicant seeks costs on a substantial indemnity basis in the sum of $10,500.00, fixed and payable forthwith to her counsel. In support of this position, the Applicant argues that substantial indemnity costs are payable on the basis that she made an offer to settle, that the Respondent acted unreasonably, and that the parties both sought substantial indemnity costs so this is the amount that should be awarded.

[7] The Respondent argues that a total of $950.00 in costs should be awarded. In the alternative, he submits that $3,500.00 all-inclusive is the amount that should be awarded. In support of this position, the Respondent argues that the matter was straightforward, he acted reasonably and his positions were reasonable in the circumstances. Finally, the Respondent argues that he is not earning any income because he has closed his construction business down.

b) Analysis

[8] I start with the Offers to Settle. Counsel for the Applicant is correct that this was a binary case, where one side would win and the other side would lose. As a result, an offer to settle is a factor that I am inclined to give limited weight to in these circumstances.

[9] I also give the offers to settle a limited weight because it is clear that both sides were looking for a way to accommodate the other side within their primary positions that the children should remain with them for the duration of the pandemic. The parties were acting in what they thought was the best interests of the children.

[10] On that point, I note that there is a suggestion in the Applicant’s submissions that the Respondent was behaving unreasonably. Counsel did not, however, forcefully argue that the Respondent was acting in bad faith. The Respondent’s resorting to a self-help remedy was unreasonable conduct, and was troubling to the Court. However, on the facts of this case, I do not see the Respondent’s conduct rising to the level of bad faith for two reasons:

a) The Respondent was not withholding all access. b) The Respondent responded promptly to the Court order and to the other directions of the Court.

[11] However, I am of the view that the Respondent did act unreasonably in this case. As I described above, the Respondent resorted to a self-help remedy when he should have sought the assistance of the Courts if he thought a change in the existing Orders was necessary.

[12] This brings me to the quantum of the costs claimed. The facts in this case were relatively straightforward, no factum was prepared, and the argument took approximately an hour. The Applicant has claimed costs that are based on a total bill of $12,850.00. At counsel’s rate of $350.00 per hour, this works out to approximately thirty-seven (37) hours of lawyer time. In my view, this is significantly more than what would be a proportional amount for costs.

[13] In my view, the reasonable costs of this motion that the responding party would expect to pay would be closer to $5,000.00, inclusive of HST and disbursements rather than the nearly $8,000.00 that the Applicant claims on a partial indemnity basis.

[14] The Applicant provided case-law to suggest that she was still entitled to her costs, even if she was in receipt of legal aid. The Respondent did not address this issue in his submissions. Therefore, I will not address it in my reasons.

[15] Finally, there is the issue of the Respondent’s construction business. I note that, even if this business was shut down, the emergency orders issued by the government have, for the most part, permitted construction businesses to operate for significant periods during the pandemic. In addition, there is very little detail about what income has been lost, when it is expected to start up again, and whether it will be recouped through longer hours once the Respondent’s business is up and running. I am not persuaded that any deduction should be made to the costs otherwise payable to the Applicant as a result of the Respondent’s work situation.

c) Conclusions

[16] For the foregoing reasons, I am not persuaded that this is a case for the payment of full, or substantial indemnity costs. I am also of the view that the amounts sought by the Applicant are modestly excessive for a motion that took less than an hour to argue.

[17] As a result, I fix the costs for this motion in the sum of $5,000.00, inclusive of HST and disbursements. I see no reason to deviate from the usual rule that costs are due and payable within thirty days, and I so order.

Lemay J

Released: June 8, 2020