Court File and Parties

Court File No.: FS-19-96297-00 Date: 2023 07 31 Superior Court of Justice - Ontario

Re: M.L.S., Applicant And: B.H.S., Respondent

Before: Conlan J.

Counsel: Madhulika Dutt, for the Applicant Self-Represented, Respondent

Endorsement on Costs

I. Introduction

[1] This Court heard a motion brought by the Applicant wife, M.L.S., requesting an order that the Respondent husband, B.H.S., post security for costs in the suggested amount of $50,000.00. The motion was opposed by the Respondent.

[2] In its decision, M.L.S. v. B.H.S., 2022 ONSC 7078, at paragraph 35, this Court ordered that the Respondent shall pay into court as security for costs the sum of $25,000.00.

[3] The parties were unable to resolve the costs of the motion, and each side filed written submissions on that issue. Although the submissions were filed long ago, they were brought to my attention on July 27, 2023. This Court apologizes to the parties for that delay.

II. The Parties’ Positions on Costs

[4] The Applicant seeks costs in the total amount of $4,386.43, on a partial indemnity scale.

[5] Although not expressly stated in his written submissions on costs, a fair interpretation of the Respondent’s position is that there should be no order for costs of the motion. In the final two paragraphs of his written submissions on costs, on page two, the Respondent makes two points: (i) “adding costs to the security for costs order will just be punitive anyway and will not be meeting the purpose for which costs are awarded”, and (ii) “[t]he application must be dismissed, or costs reserved”.

III. Decision on Costs

[6] This Court orders that the Respondent shall pay costs to the Applicant in the total amount of $4000.00.

[7] Although there is nothing unreasonable about the Applicant’s Bill of Costs, I have reduced the partial indemnity figure to account for the fact that the Applicant was not wholly successful on her motion (she sought $50,000.00 as security for costs, however, $25,000.00 was ordered by this Court).

[8] I do not accept the Respondent’s submission that a costs award “will just be punitive” and “will not be meeting the purpose for which costs are awarded”. As the successful litigant, the Applicant is presumptively entitled to some costs, and nothing submitted by the Respondent serves to rebut that presumption. The fairly modest costs order made herein does indeed partially indemnify the successful litigant, the Applicant, which is one of the objectives of a costs order.

[9] Further, I do not accept the Respondent’s submission that “[t]he application must be dismissed”. I have no jurisdiction to make that order. There is no motion before this Court which asks for that order to be made. There is no basis to grant summary judgment in favour of the Respondent, just as there is no basis for this Court to vary any existing order that freezes the Respondent’s assets, which is another submission made by the Respondent in his written materials.

[10] Finally, there is no merit to the Respondent’s submission that costs of the motion be reserved. The more usual practice is to determine costs after each step in the case – 24(10)(a) of the Family Law Rules. This was a discrete motion, and there is no reason to think that it would be more just to leave the costs determination to a later date.

[11] This Court, in deciding the motion, rejected the Respondent’s claim of impecuniosity. Having said that, the Court has taken into account the Respondent’s financial circumstances and his ability to pay in settling on the figure of $4000.00, which quantum undoubtedly would be considered quite modest for this type of motion.

[12] In summary, I think that $4000.00 is a just, fair, reasonable, and proportionate sum in all of the circumstances.

Conlan J. Date: July 31, 2023