Houston v. Houston, 2012 ONSC 233
CITATION: Houston v. Houston, 2012 ONSC 233
DIVISIONAL COURT FILE NO.: DC-09-00000047
DATE: 20120111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S. Chapnik, J.C. Murray and R.D. Gordon JJ.
BETWEEN:
Laura Ann Houston
Appellant
– and –
Shawn Francis Houston
Respondent
COUNSEL:
Joel Skapinker, for the Appellant
Stacy M. MacCormac, for the Respondent
HEARD: September 21, 2011
Gordon J.
Overview
[1] At the hearing of this appeal, we determined that the trial judge erred in his determination of the net family property of the Respondent, with the result that the equalization payment due from the Respondent to the Appellant increased by approximately $50,000. The issue of costs, both of the appeal and the trial, requires reconsideration in light of the appeal decision.
[2] We invited written submissions on costs from the parties, not to exceed six pages in length each. The Appellant was to file her submissions within 30 days and the Respondent within 45 days. The parties completed their initial submissions within the prescribed times. The Appellant thereafter filed a lengthy “Reply Costs Brief” and the Respondent subsequently filed a “Respondent’s Reply Costs Submissions”. These latter submissions were not contemplated in our original endorsement and were not requested by us. No leave was sought by the parties to make further submissions. In the circumstances, we have considered only the original materials filed in compliance with our decision.
Background
[3] The trial of this matter was conducted over a period of six days and dealt solely with the issue of equalization of the net family property of the parties. The Appellant (Applicant at trial) claimed payment of $160,941 and the Respondent claimed that the payment ought to be $16,941.75. At trial the judge determined the required payment to be $46,103.96. He subsequently made a costs order against the Applicant in the amount of $70,000.00 on the basis that: (1) The Respondent enjoyed overall success at trial; (2) The Appellant had virtually no measure of success at trial, particularly when measured against the few offers she had made to settle the case; (3) The Respondent had made offers for substantially more than the Applicant was awarded and should be entitled to full recovery costs from the date of the first of such offers. The decision of the trial judge regarding costs leaves one with the distinct sense that he was less than impressed with the Applicant’s efforts to settle the case before trial.
[4] It is to be noted that the Respondent had, some six months prior to the commencement of trial, made an offer to pay $102,495 in settlement of the case. This offer remained open until one minute after the commencement of trial.
[5] In her appeal documents, the Appellant raised several issues. Two relatively minor issues were conceded by the Respondent prior to argument. Of the issues argued, the Appellant enjoyed success only on the issue relating to the line of credit. The remaining issues were determined in favour of the Respondent.
[6] Overall, the effect of our appeal decision was to increase the equalization payment due from the Respondent by about $50,000. The new equalization payment remains less than that offered by the Respondent to resolve the case in November of 2009.
Costs of the Appeal
[7] Although the Respondent may have succeeded on more of the issues presented on appeal, there can be no doubt that the Appellant enjoyed greater overall success. The most significant issue on appeal, and the issue to which most of the materials and argument was directed, was the line of credit. The effect of the Appellant’s success on this issue was a substantial increase in the equalization payment due to her.
[8] Having regard to her success, it is appropriate that she receive some measure of costs of the appeal. However, in our view, it must be tempered somewhat by her lack of success on the remaining issues raised in argument. She has claimed costs of about $25,000 inclusive of disbursements. Having regard to all of the circumstances, an all inclusive award of $15,000 would be more appropriate, and it is so ordered.
Costs of the Trial
[9] The Appellant has asked that we revisit the award of costs made by the trial judge having regard to the results of the appeal, the Offers to Settle made prior to trial, the effect of Rule 24(10), and the conduct of the parties.
The Offers to Settle
[10] That the Respondent made an offer to settle this case many months before trial for an amount in excess of that now found to be due to the Appellant is of considerable consequence. However, the Appellant has urged us to give less weight to this offer because: (1) it was based upon financial statements in which the Respondent entered, as a debt, the mortgage owing on 24 College Street; and (2) the Respondent did not assert at any time prior to trial that any portion of the line of credit was used to purchase or improve the matrimonial home. The Appellant argued that she was unable to properly assess the offers because she was unaware that the position of the Respondent relative to these two issues would change over the course of the trial.
[11] There has been no suggestion that the Respondent intentionally mislead the Appellant about his position at any time. It was not argued that the new positions taken by the Respondent at trial fell outside of the issues defined by the pleadings.
[12] In the context of a costs assessment, and absent any allegation of deliberate misrepresentation, it is inappropriate for the court to undertake an assessment of the bases upon which an offer to settle is formulated, made or considered. Particularly in a case such as this, wherein there existed the single issue of the amount of money due from the Respondent to the Applicant, the court’s consideration of an offer should be restricted to a review of the amount offered in contrast to the amount ultimately ordered by the court.
[13] In our view, the manner in which the trial judge dealt with the offers to settle was entirely appropriate.
The Effect of Rule 24(10)
[14] The Appellant also argued that because Family Law Rule 24(10) requires the court to fix the costs at the end of each stage in the litigation, a trial judge may only award costs relating to the trial itself and as such, the trial judge erred by awarding costs for other than the trial. In support of this position, counsel cited Islam v. Rahmon 2007 [ONCA] 6722, Jahn-Cartwright v. Cartwright 2010 ONSC 2263, [2010] O.J. 3307, Biant v. Sagoo 2001 28137 (ON SC), [2001] O.J. 3693 and Moore v. Riley [2005] O.J. 3021. We do not interpret these cases to stand for this broad proposition.
[15] Rule 24(10) provides as follows: “Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.”
[16] Citing this rule, the Court of Appeal in Islam v. Rahmon, accepted that there should be excluded from an award of costs at trial amounts claimed for steps taken in the course of the litigation where no order was made as to costs or where there was silence on the issue of costs. However, it is important to understand that the rule and the decision of the Court of Appeal speak to costs applicable to steps in a case which are addressed by a judge, such as motions and conferences. Surely the rule was not meant to extend to steps which do not require any form of judicial intervention, such as preparation of pleadings and financial statements, property evaluations, document production, attendance at questioning, review of transcripts, compliance with undertakings, and preparation for trial, to name but a few.
[17] There has been no suggestion to us that the trial judge included in his award any costs relating to steps taken before a judicial officer prior to trial.
The Conduct of the Parties
[18] The trial judge was clearly less than impressed with the conduct of the Applicant particularly as it pertained to her efforts to resolve this litigation. Conversely, he was of the view that the Respondent had made significant efforts to bring an end to the litigation on reasonable terms. It does not lie with us to determine otherwise. The trial judge’s findings in this regard are to be given deference.
Conclusion
[19] The fact remains that the Respondent made an offer long before trial which was more favourable than the award as determined by us. The Respondent’s many offers speak to the reasonable manner in which he conducted himself throughout the litigation. The few offers made by the Appellant and her lack of success relative to the offers she did make speak to her unreasonableness. We concur with and affirm the costs award made by the trial judge.
Chapnik J.
Murray J.
Gordon J.
Released:
CITATION: Houston v. Houston, 2012 ONSC 233
DIVISIONAL COURT FILE NO.: DC-09-00000047
DATE: 20120111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S. Chapnik, J.C. Murray and R.D. Gordon
BETWEEN:
Laura Ann Houston
Appellant
– and –
Shawn Francis Houston
Respondent
DECISION ON COSTS
Released: January 11, 2012