Court File and Parties

COURT FILE NO.: FC288/20 DATE: June 29, 2021 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Mei Yee Lau, applicant AND: Wing Hong Tao, respondent

BEFORE: TOBIN J.

COUNSEL: Genevieve M. Samuels for the applicant Nasar Iqbal for the respondent

HEARD: written submissions filed

ENDORSEMENT on costs

The motions

[1] On June 11, 2021, I delivered oral reasons on three motions that were argued in this case.

[2] The respondent’s parenting time with the parties’ two children was expanded and defined. Neither party was given sole decision-making responsibility. However, the principal residence of the children was ordered to be in the home of the applicant.

[3] The parties’ older child was allowed to be registered at a French immersion school.

[4] The matrimonial home was ordered to be sold.

[5] During the motion, the parties agreed to divide their household contents. The issue of ownership of two cats claimed by the parties was left for trial.

Legal considerations

[6] 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 R. 2 of the Family Law Rules, O. Reg. 114/99.

[7] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality.

[8] In determining entitlement to costs, the court must consider success and reasonableness of behaviour.

[9] Success may be determined based on the positions taken in the litigation.

Analysis

(i) Success

[10] I find that there was divided success on these motions. This does not mean that the parties were equally successful.

[11] On the motions dealing with parenting issues, I find that the applicant was the more successful litigant. She was successful in obtaining an order allowing the child to be registered in a French immersion school. The respondent’s increase in parenting time was less than he wanted but more than the applicant proposed including some holiday time. However, the applicant was more successful in that the increase in parenting time was graduated, as proposed by her. Neither party was successful in obtaining an order for joint decision-making. That issue will be determined at a latter date. In the meantime, the parties are to attempt to cooperate in making decisions on important matters concerning the children and return to court if they are unable to do so.

[12] The order made clear that the children’s principal residence was to remain in the mother’s home.

[13] The applicant was successful in obtaining an order for the sale of the matrimonial home. There was divided success on the issue of the immediate disbursal of the net proceeds of sale once the matrimonial home is sold.

[14] The division of the household contents was resolved on consent during the motion. With respect to the issue of the possession of two cats, the question of ownership is left to trial or other resolution. There is a triable issue concerning ownership.

[15] On the core and most contentious issues, the applicant was more successful. The respondent resisted the applicant’s request for school registration and the sale of the matrimonial home. As noted above, the applicant’s request to gradually enlarge the respondent’s parenting time was accepted by the court.

(ii) Behaviour

[16] Reasonable behaviour on motions includes providing offers to settle. Neither party delivered a R. 18 offer.

[17] In addressing the issue of the sale of the matrimonial home, the applicant made several reasonable proposals. The respondent’s proposal to hold the applicant’s proceeds to abide the outcome of the trial, while he would receive all his proceeds, did not reflect a compromise position.

[18] I find that both parties acted reasonably in addressing the parenting issues. I do not accept the respondent’s position that the applicant acted in a controlling manner motivated by animus against the respondent in being unwilling to negotiate parenting matters. Frankly, that characterization strikes me as an appropriate description with respect to the respondent’s position concerning the parties’ two cats.

(iii) Quantum

[19] In setting the amount of costs, the court is guided by r. 24(12), which provides as follows:

24(12) In setting the amount of costs, the court shall consider,

(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.

[20] The applicant asks for costs fixed in the amount of $7,500.

[21] The respondent requests that there be no order for costs.

[22] The issues on these motions were very important to the parties in that they concerned the care of their children and the next steps in advancing this case toward a consensual resolution or trial of the outstanding issues.

[23] There was complexity to the issue of school registration. The other issues, while important, were not legally complex.

[24] Behaviour is also a consideration in determining quantum.

[25] In this case, the respondent’s affidavit material was replete with historical complaints about the applicant and conclusory statements to which the applicant felt compelled to respond. Consequently, there was a lot of unhelpful evidence that was put before the court on the parenting motions.

[26] Both counsel expended similar amounts of time in the preparation for the motions. I will not consider the time claimed by the applicant on account of administrative staff.

[27] Taking into account all of these considerations, I find that a proportionate and reasonable costs outcome in this case is that the respondent pay to the applicant her costs for these three motions in the amount of $6,000. This sum may be paid out of the respondent’s share of the net proceeds of sale that is to be released to him following the sale of the matrimonial home.

“Justice B. Tobin”

Justice B. Tobin

Date: June 29, 2021