Samis (Guardian of) v. Samis, 2011 ONCJ 308

Toronto (North York) Registry No. DR- 50728-10 DATE: 2011·VI·15 CITATION: Samis (Guardian of) v. Samis, 2011 ONCJ 308 ONTARIO COURT OF JUSTICE BETWEEN: CATHERINE SAMIS, by her guardian GREGORY MORECROFT, Applicant, — AND — PHILIP SAMIS, Respondent. Before Justice Stanley B. Sherr Heard in chambers Endorsement inscribed on 15 June 2011 STATUTES AND REGULATIONS CITED Family Law Rules, O. Reg. 114/99 [as amended], subrule 24(1), subrule 24(6) and subrule 24(11). Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. CASES CITED Boucher et al. v.

Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.). Delellis v. Delellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont. Fam.Ct.). Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​well​Ont 2475 (Ont. C.A.). Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). Lisa Eisen, agent for Esther L.

Lenkinski ................................................. counsel for the applicant Valois P. Ambrosino ............................................................................... counsel for the respondent For previous proceedings in Ontario, see: • dismissal of ex-husband’s motion to expunge registration of support order of Vermont Family Court transmitted to Ontario forenforcement: Samis (Guardian of) v. Samis, 2010 ONCJ 500, [2010] O.J. No. 5402, 2010 Cars​well​Ont 9546 (Ont. C.J.), perJustice Stanley B. Sherr;• costs against ex-husband: Samis (Guardian of) v.

Samis, 2010 ONCJ 602, [2011] W.D.F.L. 2030, [2010] O.J. No. 5826, 2010Cars​well​Ont 10354 (Ont. C.J.), per Justice Stanley B. Sherr; and• retroactive interim spousal support in fresh action: Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381, 2011Cars​well​Ont 3637 (Ont. C.J.), per Justice Stanley B. Sherr. For previous proceedings in Vermont, see:

• appeal setting aside order of Vermont Family Court: Samis v. Samis, 2011 Vt. 21 (Vt. S.C.), per Associate Justice Denise R.Johnson for the full court. [1] JUSTICE S.B. SHERR (endorsement):— On 19 May 2011, I awarded the applicant temporary spousal supportretroactive to 1 January 2010. I dismissed her request for interim disbursements. On consent, I made a non-depletion order requiring therespondent to maintain $500,000 in his RRIF pending further court order.

I dismissed the respondent’s motion for the return of moniescollected from him by the Family Responsibility Office. [2] I invited written costs submissions. The applicant submitted a request that the respondent pay her full indemnity costsof $17,103.12, enforceable as support by the Family Responsibility Office. The respondent asked that no costs be awarded. [3] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 Cars​-well​Ont 2475 (Ont.

C.A.), confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partiallyindemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviourby litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by theunsuccessful party. [4] Subrule 24(1) of the Family Law Rules, O. Reg. 114/99, as amended (“the rules”), creates a presumption of costs infavour of the successful party.

Consideration of success is the starting point in determining costs. See Sims-Howarth v. Bilcliffe, , 6 R.F.L. (5th) 430, [2000] O.J. No. 330, 2000 Cars​well​Ont 299 (Ont. Fam. Ct.). To determine whether a party has beensuccessful, the court should take into account how the order compares to any settlement offers that were made. See Lawson v. Lawson,, 167 A.C.W.S. (3d) 723, [2008] W.D.F.L. 3600, [2008] O.J. No. 1978, 2008 Cars​well​Ont 2819 (Ont. Fam. Ct.). Theposition each party took at trial should also be examined. [5] Neither party made an offer to settle. This was surprising.

Offers to settle should have been exchanged. Full recoverycosts are not warranted. [6] The positions of the parties evolved during the course of this motion. The applicant initially sought spousal support,net of tax, in the sum of $6,700 per month, retroactive to 1 February 2007, interim disbursements of $25,000 and a blanket non-depletionorder. The respondent initially took a position rejecting each of these requests in their entirety.

During the argument of the motion, theparties agreed to the temporary non-depletion order (for a specified amount) and the sum of $1,300 per month for temporary ongoingspousal support. This left the issues of temporary retroactive spousal support and interim disbursements to be determined. The applicantamended her request during her submissions and asked for temporary spousal support of $6,000 per month retroactive to 1 February2007.

The respondent asked that no retroactive support order be made. [7] The court dismissed the applicant’s request for interim disbursements and ordered retroactive support of $3,992 permonth commencing on 1 January 2010 and $1,300 per month commencing on 1 November 2010. The court also dismissed therespondent’s motion for recovery of amounts previously collected from him by the Family Responsibility Office. [8] Subrule 24(6) of the rules provides that, if success in a step in a case is divided, the court many apportion costs asappropriate. [9] There was divided success in this case.

However, this does not mean that the parties were equally successful. [10] The core of this motion was that the respondent has vigorously resisted paying the applicant spousal support for severalyears. The applicant’s motion was necessary. The respondent had made it very clear that no support would be forthcoming without acourt order.

The applicant received a significant spousal support order and was the more successful party on this motion, although Ifound that she overreached in various requests for relief. [11] In making this decision, I considered the factors set out in subrule 24(11) of the rules, which reads as follows:

(11) Factors in costs.— A person setting the amount of costs shall consider, (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party orwitnesses, drafting documents and correspondence, attempts to settle, preparation, hearing,argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter. [12] This case was important for both parties as significant money was at stake. The matter was more difficult and complexthan most motions of this nature due to the interaction with the Vermont proceedings. This motion was argued over two days, involvedseveral legal issues and required considerable preparation. It was exceptionally presented by both lawyers. [13] The applicant argued that the respondent acted unreasonably on the motion. I disagree.

His requests for adjournmentswere appropriate, first because of the short notice of the first motion and second because of a medical reason. The respondent’s financialdisclosure had some gaps, but his disclosure obligations were substantially complied with. Both parties acted reasonably during themotion by modifying their positions and reaching agreements. The respondent’s flexibility at the motion was a factor in assessing costs. It was a wise financial decision. [14] The applicant’s lawyer’s rates were reasonable. Her law clerk’s rates are excessive.

[15] The applicant’s counsel spent additional time on this file attempting to ascertain the applicant’s actual monthly needs. Her original material set these expenses at a very high level. These expenses were appropriately challenged by the respondent. Theapplicant was then able to provide more information about her Medicaid coverage and it turned out that her current monthly expenseswere significantly less than the amounts originally claimed. This led to the agreement about the ongoing temporary support order.

Therespondent should not be required to indemnify the applicant for the additional time spent ascertaining this information. [16] The applicant’s counsel also spent time on this case arguing that the court should accept the findings of the VermontFamily Court based on the doctrine of issue estoppel.

This argument was rejected on the motion as the Vermont decision was overturnedon appeal. [17] Otherwise, this court finds that the time spent on the case by the applicant’s counsel, where the applicant was successful,was reasonable. [18] The expenses claimed by the applicant are also reasonable. [19] The respondent asked the court to take into consideration that the applicant initially brought a motion seeking post-judgment interest on the Vermont Family Court decision that had been registered in Ontario pursuant to the Interjurisdictional SupportOrders Act, 2002, S.O. 2002, c. 13.

This motion was withdrawn immediately once the Vermont Superior Court granted the respondent’sappeal. The applicant did not seek any costs for this motion and no material was filed in response to it. The applicant actedappropriately. This was not a factor in making this costs order. [20] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario, , 71 O.R. (3d) 291, 188 O.A.C. 201, 48 C.P.C. (5th) 56, [2004] O.J. No. 2634, 2004 Cars​well​Ont 2521 (Ont. C.A.), and Delellis v.Delellis and Delellis, , 143 A.C.W.S. (3d) 235, [2005] O.J. No. 4345, 2005 Cars​well​Ont 4956 (Ont.

Fam. Ct.). Boththese cases point out that, when assessing costs, it is “not simply a mechanical exercise.” In Delellis v. Delellis and Delellis, JusticeDavid R. Aston wrote at paragraph [9]: [9] However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asamended, have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates”when fixing costs. . . . Costs must be proportional to the amount in issue and the outcome.

The overallobjective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particularcircumstances of the case, rather than an amount fixed by the actual costs incurred by the successfullitigant. . . . [21] Taking into consideration these factors, the respondent is ordered to pay the applicant’s costs fixed at $7,000, inclusive offees, disbursements and HST. It will be enforceable as support by the Family Responsibility Office. [22] The respondent has the ability to pay this costs award. [23] Costs shall be payable forthwith.