) ) LUUKAS LUOMARANTA Applicant – v. –, 2013 ONSC 2813

CITATION : Luomaranta v. Lato, 2013 ONSC 2813 COURT FILE NO.: 2587/12 DATE: 2013-05-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) LUUKAS LUOMARANTA Applicant – and – SARAH LATO Respondent ) ) ) ) ) ) ) ) ) ) ) Heather-Ann Mendes, for the Applicant John Paul Paciocco, for the Respondent ) ) ) HEARD: April 11, 2013 DECISION ON COSTS JUSTICE E. GAREAU: [ 1 ] On April 29, 2013 I released a written decision relating to the motions at Tabs 10 and 12 of the continuing record. [ 2 ] It has come to my attention that there is a typographical error in paragraph 22 of my reasons released April 29, 2013.

In that paragraph, the date of June, 2011 is referred to. It was intended that the date read June, 2012, which is consistent with the June, 2012 date referred to earlier in my reasons at paragraph 13. [ 3 ] Subsequent to the release of my reasons, I have received and reviewed written submissions from counsel for the parties on the issue of costs. [ 4 ] The applicant in the proceeding brought the motion at Tab 12 of the continuing record. The respondent in the proceeding brought the motion at Tab 10 of the continuing record.

The applicant takes the position that there was divided success when you consider the disposition of the claims in both motions and accordingly, each party should bear their own costs. The respondent takes the position that she enjoyed the majority of success with respect to both motions and therefore should receive her costs. The respondent filed a bill of costs in which she claims costs of the motions in the amount of $7,331.00 plus HST of $953.03 for a total of $8,284.03. [ 5 ] In the context of Family Law cases, costs are governed by Rule 24 of the Family Law Rules.

Pursuant to Rule 24(1) there is a presumption that a successful party is entitled to costs. This is to be tempered by the overall principle in law that costs are ultimately in the discretion of the court. Rule 18 of the Family Law Rules requires the court to consider offers to settle made by the parties in determining whether it is appropriate to award costs in a proceeding. [ 6 ] In particular, Rules 18(14), (15) and (16) read as follows: COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met: 1. If the offer relates to a motion, it is made at least one day before the motion date. 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date. 3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted. 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. COSTS CONSEQUENCES – BURDEN OF PROOF

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). COSTS – DISCRETION OF COURT

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. [ 7 ] If the court concludes that an order for costs is appropriate, in assessing the quantum of costs, the court is directed by Rule 24(11) to consider the following factors in making that assessment: (

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 or witnesses, 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. [ 8 ] With respect to whether or not costs should be ordered, it is clear that the respondent enjoyed the preponderance of success with respect to the motions at Tabs 10 and 12 of the continuing record. She succeeded in obtaining an order for custody rather than shared custody with week-about care of Connor and she succeeded in obtaining an order for child support for the period from September, 2012 to April 30, 2013 rather than having no adjustment for support during that period of time, which was the position the applicant father was advancing.

The respondent also succeeded in obtaining an order for the production of financial information, as claimed in her notice of motion at Tab 10 of the continuing record. [ 9 ] Both parties made attempts to resolve the issue concerning their time with Connor by formal offers to settle made in writing. A review of these offers indicates that the respondent’s offers to settle were closer to the actual order made than the offers submitted by the applicant. Specifically, by e-mail dated August 31, 2012 from Mr. Paciocco to Ms. Mendes, the respondent proposed that Mr.

Luomaranta have Connor in his care on alternate weekends from Thursday after school to Monday at 7:00 p.m. and alternate Thursdays after school until 7:00 p.m.

Although the days for access are different than what the court ultimately ordered on an interim basis, the amount of time proposed on August 31, 2012 by the respondent is close to being the same as ultimately ordered by the court on the disposition of the motions. [ 10 ] The respondent, Sarah Lato, enjoyed the majority of success and in view of the offer submitted on August 31, 2012, should receive costs of the motions at Tabs 10 and 12 of the continuing record. [ 11 ] As to the amount of costs, the amount claimed should be reduced to reflect the fact that it was the applicant and not the respondent who was successful with respect to the Florida holiday trip issue claimed by the applicant in his motion at Tab 12 of the continuing record.

The applicant succeeded completely in that claim in his motion and is entitled to costs of that part of that motion.

The costs of the respondent should be reduced accordingly to reflect the applicant’s success on the Florida trip issue and the unreasonable position taken by the respondent mother with respect to that issue. [ 12 ] Considering the aforementioned factors and the principles set out in Rules 18 and 24(11), it is appropriate that the applicant, Luukas Luomaranta, pay to the respondent, Sarah Lato, costs of the motions at Tabs 10 and 12 of the continuing record, which I fix at $4,000.00 inclusive of HST. These costs shall be payable by the applicant to the respondent by June 15, 2013. Justice E.

Gareau Released: May15, 2013

CITATION : Luomaranta v. Lato, 2013 ONSC 2429 COURT FILE NO.: 2587/12 DATE: 2013-05-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LUUKAS LUOMARANTA Applicant – and – SARAH LATO Respondent Released: May 15, 2013