Barrie Court File No.: FC-18-1421-00

Date: 2022-01-10

Ontario Superior Court of Justice

Between:

Elizabeth Galves Rodrigues Applicant

– and –

James Michael Vella Respondent

S. Lozano, counsel for the Applicant

A. Dror, counsel for the Respondent

Costs Endorsement

[1] This Ruling on costs arises from my decision dated November 23, 2021 that dealt with a contempt motion brought by the Applicant seeking three findings of contempt against the Respondent regarding three different Orders.

[2] The Respondent opposed the Applicant’s contempt motion and brought a cross-motion seeking relief regarding the resumption of his parenting time and a finding that the Applicant was in breach of rr. 1(8) and (8.1) by her non-compliance with an order.

[3] As set out in my decision dated November 23, 2021, there was mixed success. Both parties received some of the relief sought in their motions.

[4] The Applicant seeks partial indemnity costs in the amount of $16,510.66 or $14,446.82 (at the courts discretion) inclusive of H.S.T. for her contempt motion and for the Respondent’s cross-motion. The Respondent opposes the Applicant’s claim for costs and requests that given the outcome, the Applicant should pay him $5,000 in costs, or, in the alternative, that each party should bear their own costs.

[5] As set out in r. 24 of the Family Law Rules and in Mattina v. Mattina 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes:

a. To partially indemnify successful litigants;

b. To encourage settlement;

c. To discourage and sanction inappropriate behaviour by litigants; and

d. To ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.

[6] Both parties made offers to settle. A review of the offers show that each party was successful on certain parts. This was primarily a contempt motion and a motion regarding resumption of parenting time. There was mixed success, and in my view, neither party beat their own offers. Neither party’s offer/s attract cost consequences.

[7] The Applicant claims that she and the child need the Respondent “to pay costs because those are funds needed for their sustenance.” The Applicant included details in her cost submissions about her “modest means” and her and the child’s living situation in subsidized housing, as compared to the Respondent’s six figure income and his residing in the party’s matrimonial home. She further stated that the Respondent has millions of dollars of assets in his possession and that he has refused “a recent request for an advance of equalization funds”. In my view, the needs of the Applicant and child are relevant to support issues, they are not relevant factors to consider when deciding costs of this motion.

[8] In some circumstances, affordability may be a relevant factor to consider when defending a costs order being made against a party, but a party’s limited financial circumstances will not be used as a shield against any liability for costs. At the same time, the secure or wealthy financial circumstances of one party cannot be used as a sword against them. A party shouldn’t pay a costs premium because he or she has the ability to pay it. Wealthier persons shouldn’t have to pay more. Beaver v. Hill, 2018 ONCA 840.

[9] Of further irrelevance to the issue of costs is whether or not one or both of the party’s has appealed the courts decision dated November 23, 2021. The Applicant said that the Respondent is in breach of my Order because he has served a motion seeking leave to appeal part of my Order. My Order cannot and did not prohibit appeals. When considering the issue of costs of this motion, I have not given any weight or consideration to any submissions made on the topic of appealing the court’s decision.

[10] In this matter, there was mixed success, and neither party’s offers attracted cost consequences. Given the fact that the court made findings against both parties sanctioning their behaviour, I am not inclined to award costs to either party. For reasons set out above, I find it is fair, just, and reasonable that each party bear their own costs for this long motion.

Jain J.

Date: January 10, 2022