Court Information
Date: December 20, 2017 File No.: D90009/16 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
Between: Inna Tigay, Applicant (mother)
- and - Alexandru Bucataru, Respondent (father)
Before: Justice Robert J. Spence
Costs submissions received in Chambers
Reasons for Decision released on: 20 December 2017
Counsel
Ms. Helen Kurgatnikov Miller ……………. for the applicant, mother
No one responding for the respondent, father, although represented at trial by Mr. Theodore Nemetz
Costs Endorsement of Justice Robert J. Spence
Introduction
[1] On November 2, 2017, I presided over a trial involving the mother's spousal support claim. On November 6, 2017 I released my judgment, awarding the mother $1,275 per month, to be paid by the father, commencing April 1, 2017.
[2] The mother filed her Costs submissions on November 27, 2017, the date required by the court. The father was to have filed his responding submissions by December 11, 2017. To date he has not filed a response to mother's submissions. Accordingly, I treat the mother's submissions as uncontested. Nevertheless, I assess her costs request on the merits.
[3] On October 17, 2017, about two weeks prior to trial, the mother had served the father with an Offer to Settle, seeking $900 per month, commencing September 1, 2017.
[4] The mother's Offer provided that support would terminate on August 31, 2020.
[5] The father's Offer to Settle, served October 25, 2017, offered to pay spousal support in the amount of $500 per month, from November 1, 2017, and terminating on December 31, 2018.
[6] The trial decision ordered that support could be reviewable at the behest of either party any time after December 31, 2021.
[7] The mother's Offer to Settle was more favourable, in all respects, than the trial decision.
Analysis
[8] The applicable Family Law Rules (Rules) which govern costs are Rules 18 and 24.
[9] Mother's Offer fell within the definition of an "offer" set out in Rule 18.
[10] Rule 18(14) sets out the costs consequences of a party's failure to accept an Offer, where the party making the Offer – in this case, the mother – achieves a result as well as, or better than the outcome at trial. Those consequences include a presumption of an entitlement to full recovery costs from the date of the Offer, forward.
[11] Subrule 18(14) does give the court an overriding discretion to order costs other than on a full recovery basis, even if all of the conditions in Rule 18 are met.
[12] In this case, the court has been provided with no basis for exercising its discretion to refrain from ordering full recovery costs as provided for in subrule 18(14). On the contrary, mother's Offer was more than reasonable in the circumstances, particularly given the outcome at trial. It was an Offer which was realistically designed to settle the litigation.
[13] Subrule 24(11) sets out the factors the court is to consider in determining the quantum of any costs order. There is no need to list those factors here.
[14] I have reviewed Ms. Miller's Bill of Costs and find that the work she performed was necessary and appropriate for the nature and importance of the case. I find too, that her time spent was reasonable in the circumstances; and her hourly rate of $400 is reasonable for a lawyer who was called to the Bar 23 years ago.
[15] On the facts of this case, I have concluded that the Rules should operate to provide for a full recovery of costs from the date of the Offer, and a partial recovery of costs prior to the date of the Offer.
[16] In determining the full amount of costs, I have considered all of the factors set out in subrule 24(11).
[17] In particular, and in addition to my earlier comments, I note the wording of subrule 24(11)(b), which directs the court to consider:
The reasonableness or unreasonableness of each party's behaviour in the case.
[18] This is an apt consideration, given certain observations in my trial decision, in which I wrote, at paragraphs 62 and 63:
[62] As at the date of trial the father still had not complied with all of his financial disclosure leaving a few questions unanswered. He was persistently late in providing the financial disclosure which he did deliver. . . . The court very much disapproves of the manner in which the father conducted himself in this litigation, particularly leaving certain facts undisclosed.
[63] Furthermore, the father's lack of candour places in doubt his credibility as to the bonus he will receive.
[19] Furthermore, I consider the father's Offer to Settle to be so unrealistic as to constitute unreasonableness on his part. An Offer such as the father's is designed to do little more than to promote litigation, not to resolve it. This approach runs counter to the ruling in Serra v. Serra, 2009 ONCA 395, in which the court of appeal stated that the modern costs rules are designed to encourage settlement, not to fan the flames of litigation.
[20] One of the intents of subrule 24(11)(b) is to discourage unreasonable behaviour by the parties. And to the extent that one of the parties is not so discouraged, this will tend to push the amount of costs higher. See Serra v. Serra, supra.
Conclusion
[21] Ms. Miller, in her costs submissions, presented various scenarios for a possible costs order, with the amount of $15,367.21 being at the highest of those scenarios.
[22] Having regard to all of the considerations discussed in these reasons, my costs order will be toward the higher end of Ms. Miller's request.
[23] My costs order is calculated as follows:
For legal fees prior to the Offer, I award partial recovery of costs in the amount of $3,090.
For legal fees subsequent to Offer, including preparation for trial, attendance at trial, reviewing reasons for judgment and preparation of costs submissions, I award full recovery of costs in the amount of $9,160.
Disbursements are $319.30
H.S.T. on legal fees and disbursements $12,569.30 x 13% = $1,634
Total of all the above is $14,203.30
[24] The total costs in the amount of $14,203.30 will be payable by the father to the mother within 45 days of the date of this endorsement.
[25] This endorsement shall be conveyed to Ms. Miller as counsel for the mother and to Mr. Nemetz who was counsel of record for the father at trial. I direct Mr. Nemetz to take all reasonable steps to ensure that the father receives a copy of this endorsement as quickly as possible.
Justice Robert J. Spence
December 20, 2017