COURT FILE NO.: FS-22-00029715-0000
DATE: 2024-08-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sandra Sunkea Ang
Applicant
– and –
Winston Ang and Jacqueline Ang
Respondents
Toni E. Wharton and Evan Moore (re civil matter), for Applicant
Winston Ang – Self represented and F. Scott Turton for the Respondent Winston Ang re civil matter)
Garth Dingwall and Murtaza Yailaqi, for the Respondent Jacqueline Ang
HEARD: August 9, 2024
RHINELANDER J.
REASONS FOR DECISION
[1] A motion was scheduled for April 30, 2024, to have civil proceedings CV-23-00707045-00000 consolidated with the family proceedings FS-22-00029715-0000. No responding materials were filed by the Respondent, Winston Ang.
[2] The parties reached a settlement on the day of the motion. The Applicant seeks costs of $17,440.19 inclusive of disbursements and HST for this motion.
[3] The Applicant was the successful party insofar as no one opposed consolidation of the two motions, however, the parties were not agreed on the most efficient process.
[4] Modern family costs rules are designed to foster four fundamental purposes: i) to indemnify successful litigants for the cost of litigation; ii) to encourage settlements; iii) to discourage and sanction inappropriate behaviour by litigants; and iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[5] The factors a court may consider in determining costs are set out in Rule 24(12) of the Family Law Rules. The reasonable expectation of the unsuccessful party may assist in determining an amount that is fair and reasonable. are a relev: Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345.
[6] Costs should reflect what is a fair and reasonable amount that should be paid by the unsuccessful party. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840 at para 12. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of Rule 18, any legal fees and any other expenses, and any other relevant matter.
[7] Subject to the provisions of an Act or the rules of the court, costs are in the discretion of the court, pursuant to s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[8] The question for this court is whether this motion was necessary and reasonable. The parties could have easily resolved this matter by scheduling a conference call. All parties acknowledged the overlap of the two separate proceedings and were agreed in principle that the matters should be joined. The only issue was one of procedure and process.
[9] On the motion date, the parties were directed to have discussions and were sent to a breakout room. This resulted in the consent agreement.
[10] Recently, the court has seen several motions that could have been avoided had counsel simply picked up the phone or sent an email to canvas availability to schedule a conference or meeting between themselves.
[11] This motion was not complex or controversial. The only difficulty was getting everyone together at the same time.
[12] The costs sought by the Applicant are exceedingly high where it was clear from the outset all parties were agreed in principle but needed a further opportunity to discuss the process and parameters. Neither Respondent was opposed to the two motions being joined, but rather, considering the process, and how it should unfold. This motion was brought prematurely and counsel should have made efforts to have a conference call to settle the issues in advance.
[13] The conduct of a party may be considered when determining an order for costs. Neither Respondent filed a response to the motion pursuant to the Family Law Rules.
[14] The Respondent, Winston Ang, failed to file any materials. He argued costs should not be imposed against him as he did not oppose the motion. He may not have opposed the motion, however, he failed to comply with Rule 14 of the FLR and he failed to confer with the other parties in advance of the motion. I appreciate counsel was unavailable as they were in trial, however, there was nothing before this court to advise what steps were taken to confer in advance of the motion date.
[15] The Respondent Jacqueline Ang filed a response the eve of the motion after regular business hours. Had both Respondents complied with the rules, the matter could have been removed from the motion list and a draft Order submitted to the Court on consent.
[16] The Court Orders that:
The Respondents shall pay equally share costs to the Applicant of $4,500.00 inclusive for a total of $2,250 each.
Rhinelander J.
Released: August 9, 2024
COURT FILE NO.: FS-22-00029715-0000
DATE: 2024-08-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sandra Sunkea Ang
Applicant
– and –
Winston Ang and Jacqueline Ang
Respondents
REASONS FOR DECISIONS
Rhinelander J.
Released: August 9, 2024