ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 44466/92

BETWEEN:

PETER SPROULL MILSOM
Applicant

– and –

SHARON LEE MILSOM
Respondent

Julius Dawn, for the Applicant
Diana Carr, for the Respondent

HEARD: By Written Submissions

DECISION WITH RESPECT TO COSTS

Power J.

[1]

Background

On November 21, 2011, I issued Reasons for Decision in this matter. The matter before me was a request by the applicant that all spousal support to the respondent terminate retroactively to October 28, 2009. The respondent, by way of cross-motion, sought an order for further support. The application was vigorously opposed by the respondent. I found that the applicant was entitled to the order sought by him. In doing so, I found that the respondent’s claim for continued support amounted to double-dipping.

2I concluded my Reasons by stating:

18In the event that within 30 days following the issuance of these Reasons the parties cannot conclude an agreement with respect to legal costs, they may make brief written submissions to me.

3The parties have been unable to reach an agreement and have made extensive written submissions to me as to how I should dispose of costs.

[4]

Submissions

Mr. Dawn argues that the applicant was the successful party and should therefore be the recipient of an award of costs in his favour. He argues, as well, that the applicant made two offers to settle, both of which were more favourable to the respondent than the eventual result, and that these offers must be taken into consideration.

5The respondent also made an offer to settle. She proposed that spousal support be continued indefinitely at the rate of $600 per month without variation for at least five years.

6Accordingly, the applicant seeks an award of costs on a partial indemnity basis up to the date of the second offer and on a full recovery basis following that. Mr. Dawn argues that the respondent failed to participate in mediation efforts and, indeed, refused to negotiate following her being notified of the applicant’s desire for a variation in accordance with the parties’ separation agreement. He also argues that the respondent was not frank in the preparation of her financial statement. He argues that the respondent made no reasonable attempts to settle this matter whereas the applicant acted responsibly and reasonably throughout.

7It is also submitted on behalf of the applicant that he, the applicant, was subjected to substantial legal costs because of the respondent’s conduct – i.e., $35,985.75. Counsel points out that his hourly rate was significantly lower than the average rate charged by counsel of his seniority. In addition to the amount of $35,985.75 on account of fees, the applicant incurred disbursements and H.S.T. bringing the total amount of fees, disbursements and taxes to $41,746.05. The applicant claims $10,394.97 on the partial indemnity scale from the date of commencement of the proceedings until the applicant’s offer to settle of July 14, 2011. He claims $25,840.81 on a full recovery basis for fees and disbursements following that date. Accordingly, the total claim is $36,235.78 inclusive of disbursements and H.S.T.

[8]

Respondent's Submissions

Ms. Carr, on behalf of the respondent, submits that an appropriate order would be an order that costs be payable to the applicant but limited to $6,500 inclusive of H.S.T. She submits that the effect of my decision is to impose financial hardship on the respondent. She acknowledges that the issue to be determined was extremely important to both parties but was not complex.

9With regard to the allegation that the respondent acted unreasonably Ms. Carr submits as follows:

The Respondent has some mental health issues and had, in the past, an emotional breakdown. She is subject to panic attacks which condition was likely heightened with the prospect of a reduction of her modest income. She did not feel safe to participate in mediation. She could not afford a lawyer, and, at the outset, Mr. Milson did not have a lawyer and she cooperated after she was served with his proceeding to the court.

10Much of the remaining submissions with respect to the issue of reasonableness relate to the merits of the motion that was before the court.

11Ms. Carr also submits that the applicant acted unreasonably. However, in my opinion, the evidence does not support her argument.

12Ms. Carr also submits that the applicant’s claim is excessive because excessive time was spent on “this straightforward matter.” She argues that reasonable fees for this motion should be $12,523.40. Ms. Carr concludes her argument as follows:

The Respondent therefore seeks an order that costs be fixed in the amount of $6,500.00 including H.S.T. payable by her to the Applicant in instalments of $500.00 per month until paid in full.

[13]

Applicant's Reply Submissions

In his responding submissions Mr. Dawn argues that the respondent’s attempt to re-litigate the issues is inappropriate to a determination of costs. I agree. He submits, as well, that this was not a straightforward matter given the conduct of the respondent and, in particular, the responding motion seeking an increase in spousal support. He stresses that he billed the applicant at the rate of only $225 per hour which he says is significantly less than what could have been billed – i.e. $350 per hour.

14I quote from para. 17 of Mr. Dawn’s responding submissions as follows:

17. It is patently unfair and unreasonable that the Applicant, as the fully successful party, would have to deficit finance his legal expenses and the Respondent should now preserve her capital assets while recklessly driving up the costs of these proceedings. This is especially true in light of the Respondent’s conduct in failing to make a meaningful offer to settle, withdrawing from all negotiations, providing misleading and incomplete financial disclosure, as well as unnecessarily attempting to re-litigate previous settled issues; all of which individually and collectively warrant a full recovery of costs. The principle of law and rules of court recognize a fully successful party who consistently makes offers more generous than the award obtained should be compensated by a higher award of costs, and an unsuccessful party can not claim immunity simply based on limited means, …

15In my opinion this submission hits the mark in this case. Mr. Dawn also argues that notwithstanding that the respondent’s income may be modest, she has substantial capital assets.

16Mr. Dawn concludes his submissions as follows:

It is respectfully submitted that substantial recovery of costs be awarded pursuant to Rules 24(1) and 18(4), in recognition of the parties’ respective conduct, and the Applicant’s two offers both more generous than the result obtained, that costs payable to the Applicant be fixed in the amount of $36,235.78 inclusive of disbursements and HST.

[17]

Analysis

I agree substantially with the arguments submitted on behalf of the applicant. The fact is that the respondent’s conduct in this litigation resulted in legal fees being incurred in a much greater amount than was necessary. However, I do have a concern with the size of the claim relevant to what was, in essence, a rather straightforward matter.

[18]

Disposition

Therefore, in the result, I fix the applicant’s fees, disbursements and H.S.T. at the global amount of $25,000. I order that the costs be paid by the respondent to the applicant within 60 days of the release of this decision.

19Order accordingly.

Power J.