2017 ONSC 2171, 2017 ONSC 2171

CITATION : Szonyi v. Szonyi , 2017 ONSC 2171 COURT FILE NO.: 14-1417-1 DATE: 2017/04/10 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Steven Szonyi, Applicant AND Susanna Szonyi, Respondent BEFORE: Madam Justice Sylvia Corthorn COUNSEL: John Summers, for the applicant Susanna Szonyi, self-represented HEARD: In writing ENDORSEMENT REGARDING COSTS CORTHORN J. [ 1 ] This endorsement as to costs follows my endorsement dated October 27, 2016 with respect to the respondent’s motion for interim spousal support and child support.

It also follows the endorsement from a procedural motion heard (by one of my colleagues) in March 2016. The costs of the procedural motion were reserved to the judge who heard the respondent’s motion. [ 2 ] As I noted in my October 2016 endorsement, the applicant was largely successful in his response to the various forms of relief requested by the respondent on her motion. The respondent rejected the continued payment of child support and the applicant’s contribution towards

Section 7 expenses on a voluntary basis. The end result was that the applicant’s obligations pursuant to my endorsement were in a lower amount than were the various post-dated cheques the applicant had provided to the respondent in late 2015. [ 3 ] I found that the applicant is entitled to his costs of both the procedural motion and the substantive motion. [ 4 ] I also ordered that the costs, once assessed, be paid by the respondent to the applicant out of the respondent’s share of the $150,000 proceeds being or to be held in trust following the sale of the matrimonial home.

Positions of the Parties [ 5 ] The parties were given a limited amount of time within which to agree to both the scale and quantum of costs. In the event they were unable to agree upon same, the parties were given deadlines by which to deliver their respective costs submissions. I received submissions from counsel for the applicant. I did not receive any submissions from the respondent. As a result, this endorsement is based exclusively on the submissions received from counsel for the applicant. [ 6 ] The applicant seeks costs, on a substantial indemnity basis, in the total amount of $4,000.

That figure is based on the following: Procedural motion (incl. HST) $ 750.00 Other time (5.5 hours) $ 1,650.00 Counsel fee on motion $ 1,500.00 HST on $3,150 $ 409.50 Total $ 4,309.50 Rounded to $ 4,000.00 [ 7 ] Counsel for the applicant was called to the bar in 1999. His hourly rate is $300. [ 8 ] Counsel for the applicant was not counsel on the procedural motion. He does not have any information as to time spent by his predecessor in dealing with the procedural motion.

He therefore estimated an amount for the fees associated with the procedural motion. [ 9 ] The importance to the parties of the issue of child support is highlighted in the written submissions. The applicant acknowledges that the issues were not particularly complex. [ 10 ] The applicant relies on what is submitted to be unreasonable behaviour on the part of the respondent. The unreasonableness alleged is in the following forms:

• The applicant was required to bring a procedural motion to secure an adjournment of the respondent’s motion. The adjournment, which the applicant submits should have been on consent, was granted; and • On the return of the substantive motion on May 10, 2016, the motion was adjourned to allow the respondent additional time to obtain the advice of counsel with respect to the terms of minutes of settlement which had been drafted. To that point in time, the respondent had indicated that subject to consulting with counsel, she was prepared to execute the minutes of settlement.

The minutes of settlement were on terms more favourable to the respondent than are the terms of my October 2016 endorsement. Factors [ 11 ] The factors to be considered when fixing costs in a family law matter are set out in Rule 24 of the Family Law Rules .

The factors include the presumption that the successful party is entitled to costs; the importance, complexity or difficulty of the issues; the reasonable or unreasonable behaviour of a party; any bad faith conduct by a party; offers to settle; and the reasonable expectations of the losing party. [ 12 ] In dealing with the amount of costs, consideration is to be given to the scale on which costs are awarded, the hourly rates in relation to the Information to the Profession, time spent, and the principle of proportionality. Fixing Costs

a) Scale of Costs [ 13 ] A copy of the draft minutes of settlement is included in the costs submissions received from counsel for the applicant. The minutes deal with a number of issues, in particular related to property, which were not addressed on the respondent’s motion. [ 14 ] With respect to the issues addressed in my endorsement, it is clear that the applicant was ordered to pay child support in an amount significantly less than he was willing to continue to pay on a voluntary basis and/or in accordance with the draft minutes of settlement.

Pursuant to my endorsement, the applicant was required to pay child support in the amount of $113.92 per month from January 1, 2016 forward. The minutes of settlement called for the applicant to pay child support in the amount of $450. [ 15 ] In all of the circumstances, I find that the applicant is entitled to his costs of the procedural motion and the substantive motion on a substantial indemnity basis.

b) Amount of Costs [ 16 ] In determining the amount of costs payable, I find that the hourly rate of counsel for the applicant, the counsel fee requested for the procedural motion, the time spent in client communication and in preparation for the motion (5.5 hours), and the counsel fee requested are reasonable when considered on a full indemnity basis.

Therefore, the starting point for the calculation of the fees payable on a substantial indemnity basis is reasonable. [ 17 ] In determining whether the request for substantial indemnity costs in the amount of $4,000 is reasonable, I have taken the following approach. The full indemnity figures (set out in paragraph 6, above) are reduced to substantial indemnity figures by multiplying the former by 0.6 and then by 1.5.

For example, the amount allowed on a substantial indemnity basis for the procedural motion is $675 ($750 x 0.6 x 1.5). [ 18 ] Based on that calculation, I arrive at substantial indemnity fees as follows: Procedural motion (incl. HST) $ 675.00 Other time (5.5 hours) $ 1,485.00 Counsel fee on motion $ 1,350.00 HST on $2,835 $ 368.55 Total $ 3,878.55 Rounded to $ 3,880.00 [ 19 ] The difference between my calculation of $3,880 and the figure of $4,000 requested on behalf of the applicant is not a large amount. However, the parties to this matter do not have much in the way of assets.

I am also mindful that, based on my October 2016 endorsement, the costs are to be paid from the respondent’s share of the proceeds of the sale of the matrimonial home. For someone of limited means, like the respondent, the sum of $120 makes a difference in her day-to-day life and in that of the parties’ son.

Order [ 20 ] I order that the respondent pay the applicant his costs of the procedural motion and the substantive motion, on a substantial indemnity basis, in the total amount of $3,880 and that the costs are payable as provided for in paragraph 55 of my October 2016 endorsement (i.e. from the respondent’s share of the proceeds from the sale of the matrimonial home).

Madam Justice Sylvia Corthorn Date: April 10, 2017 CITATION : Szonyi v. Szonyi , 2017 ONSC 2171 COURT FILE NO.: 14-1417-1 DATE: 2017/04/10 ONTARIO SUPERIOR COURT OF JUSTICE RE: STEVEN SZONYI Applicant AND SUSANNA SZONYI Respondent BEFORE: Madam Justice Sylvia Corthorn COUNSEL: John Summers, for the applicant Susanna Szonyi, self-represented ENDORSEMENT REGARDING COSTS Madam Justice Sylvia Corthorn Released: April 10, 2017