) ) DANNY HILL Applicant – v. –, 2017 ONSC 7108

CITATION : Hill v. Fahmy, 2017 ONSC 7108 COURT FILE NO.: 3785/17 DATE: 2017-11-28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) DANNY HILL Applicant – and – VERONIQUE FAHMY Respondent ) ) ) ) ) ) ) ) ) ) ) James Marks, for the Applicant Gerald Stotland, for the Respondent ) ) ) HEARD: W ritten submissions GAREAU J.

DECISION ON COSTS [ 1 ] On October 24, 2017 I released a decision dealing primarily with the issue of interim custody and disposing of various motions brought by the parties concerning their children, Shannon Hill, born June 26, 2010, and Natasha Hill, born September 3, 2016. [ 2 ] At paragraph 44 of that decision, I invited written submissions on the issue of costs from counsel, which I have now received. [ 3 ] 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. [ 4 ] In the written submissions to me provided by counsel, no offers to settle were attached or referred to. I take it that no formal offers pursuant to the Rules were made by the parties with respect to the motions.

This is not difficult to appreciate given the polarized positions of the parties and the fact that each parent felt that the best interest of their children were served by them having primary care and custody. [ 5 ] The applicant father unquestionably enjoyed the preponderance of success on the motions and is therefore presumptively entitled to his costs. Having said that, I am reluctant to order costs in this matter. Each parent had legitimate positions to advance to the court concerning the important issue about where their children would reside.

Although the applicant has nothing to disentitle himself to costs, my view is that this is not an appropriate case to penalize or sanction the respondent mother with an order for costs. [ 6 ] The respective financial positions of the parties is a significant factor leading me to the conclusion that each party should bear their own costs of the motions. The applicant is a physician earning at least $576,000 per year. The respondent alleges that he earns substantially more than this amount.

The respondent is presently attending school on a full time basis and is completely financially dependent on the applicant. [ 7 ] Ultimately costs are in the discretion of the court. Considering all the circumstances in this case, my view is that it is appropriate for the court to exercise its discretion in ordering that each party be responsible for their own costs with respect to the motions heard on October 10, 2017.

Gareau J. Released: November 28, 2017 CITATION : Hill v. Fahmy, 2017 ONSC 7108 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DANNY HILL - and – VERONIQUE FAHMY DECISION ON COSTS Gareau J. Released: November 28, 2017