ONTARIO SUPERIOR COURT OF JUSTICE

BROCKVILLE COURT FILE NO.: 11-0621
DATE: 2012/02/13

BETWEEN:

MARY LOU MASSEY Applicant – and – MICHAEL ARCHIE MASSEY Respondent

Elizabeth M. Osborne, for the Applicant
Clinton H. Culic, for the Respondent

HEARD: By Written Submissions

DECISION AS TO COSTS

KERSHMAN J.

[ 1 ] The Applicant brought a motion for spousal support. The Respondent brought a cross‑motion for the release of monies from the sale proceeds of the matrimonial home to each party.

[ 2 ] The Applicant served an Offer to Settle dated December 7, 2011 offering to settle the claims made in her own motion. That Notice of Motion sought only spousal support but did not include relief for the release of monies from the sale of the matrimonial home. The Offer to Settle of the Applicant included a term that $10,000.00 would be released to each party from the sale proceeds of the matrimonial home.

[ 3 ] The Respondent served its own Offer to Settle dated December 7, 2011 offering to settle his motion only by way of each party receiving $10,000.00 from the sale of the matrimonial home.

[ 4 ] The Applicant argues that since the decision made by the Court on December 13, 2011 was equal to her Offer to Settle that costs should be awarded on a substantial indemnity basis and payable forthwith. The amount claimed is $1,879.36 inclusive of disbursements and HST.

[ 5 ] The Respondent argues that had its Offer to Settle been accepted by the Applicant, there would have been no need to argue the cross‑motion and that those costs were effectively thrown away. As a result, the Respondent submits that the Applicant’s costs should be reduced by at least 50 percent.

Analysis

[ 6 ] Neither party accepted the other party’s Offer to Settle.

[ 7 ] The difference between the two Offers to Settle is that the Respondent in his Offer to Settle only offered to settle his cross‑motion while the Applicant purports to offer to settle her motion including settling for relief not included in her Notice of Motion, being the release of a portion of the proceeds of sale from the matrimonial home.

[ 8 ] In the Court’s view, the Respondent did not have the ability to cherry pick and choose to accept only part of the Applicant’s Offer to Settle dealing with the sale proceeds of the matrimonial home. He had to accept the Applicant’s Offer to Settle in its entirety, which the Respondent was not prepared to do.

[ 9 ] The Applicant could have resolved the cross‑motion by accepting the Respondent’s Offer to Settle but chose not to do so.

[ 10 ] As such, I find that the Applicant should not be entitled to a higher scale of costs in accordance with her Offer to Settle.

[ 11 ] Furthermore, in accordance with Rule 18(14) of the Family Law Rules , the Applicant would only be entitled to full recovery from the date the Offer to Settle was made to the date of the hearing of the motion. A review of the Applicant’s Costs Outline shows that approximately half the costs are incurred prior to the December 7, 2011 date.

[ 12 ] Based on the aforesaid and based on the factors set out in Rule 24(11) of the Family Law Rules , this Court fixes the costs payable by the Respondent to the Applicant at the sum of $900.00 inclusive of disbursements and HST to be paid within the next 30 days.

[ 13 ] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: February 13, 2012

BROCKVILLE COURT FILE NO.: 11-0621
DATE: 2012/02/13

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARY LOU MASSEY Applicant – and – MICHAEL ARCHIE MASSEY Respondent decision as to costs Kershman J.

Released: February 13, 2012