ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 44849-10
Date: 2012-03-15

Between:

Sirikkaththuge Anura Nandadeva Ariyaratne Applicant – and – Divadalage Priyani Ariyaratne Respondent

Applicant, in person

G. Schaffer, for the respondent

The Honourable Mr. Justice G. E. Taylor

Costs Endorsement

[1] In my Reasons for Judgment following this two day trial I requested written submissions with respect costs. This is my ruling on the issue of costs of this proceeding.

[2] The contentious issues at trial were:

a) the income of the applicant for support purposes;

b) the amount of child support be paid by the applicant including the appropriate contribution to the section 7 expenses of the children;

c) the amount, if any, of spousal support to be paid by the applicant to the respondent;

d) equalization of net family property; and,

e) exclusive possession of the matrimonial home.

[3] The respondent was largely successful although she was not successful with respect to some of the issues which were required to be addressed in the determination of the parties’ net family properties.

[4] Both parties served Offers to Settle shortly before the trial. The applicant's Offer to Settle did not approach the terms of the Reasons for Judgment. The respondent's Offer to Settle did not parallel the final outcome in that the Offer capitalized the applicant’s further child and spousal support obligation. The respondent's Offer was for the applicant to pay no ongoing child or spousal support in return for the applicant transferring to the respondent his interest in the matrimonial home. I agree with the submission of the respondent that the outcome of the trial was more favourable to her than her Offer to Settle. Based on the calculations used for determining the Net Family Properties of the parties and the Equalization Payment, the value to the applicant of the respondent's Offer to Settle was $73,500. The result of the trial, including support arrears, the equalization payment and ongoing support for the period of exclusive possession of the matrimonial home amounts to approximately $79,500 owing by the applicant to the respondent. I therefore conclude that the respondent's Offer to Settle was at least as favourable to the applicant as the result of the trial.

[5] I therefore conclude that the respondent is entitled to partial indemnity costs to the date of her Offer to Settle and to substantial indemnity costs thereafter.

[6] No costs were awarded at the Case Conference or Settlement Conference. Therefore, on the authority of Islam v. Rahmon , 2007 ONCA 662 , the respondent is not entitled to costs of those steps in the proceeding. Based on the detailed accounts submitted by the respondent in her Cost Submissions, I calculate that counsel for the respondent spent approximately 11.5 hours in preparation for, attendance at and subsequent to the Case Conference and Settlement Conference. The respondent is not entitled to costs in connection with these steps.

[7] Although, I ruled against the applicant on the majority of the contentious issues at trial, I do not think he can be said to have acted unreasonably.

[8] The respondent seeks an award of costs of substantial indemnity costs to the date of her Offer to Settle in the amount of $11,490 inclusive of disbursements and HST, and an award of substantial indemnity costs for the period subsequent to her Offer to Settle in the amount of $11,979 inclusive of disbursements and HST.

[9] In my view, a reasonable amount of partial indemnity costs to be awarded to the applicant is $5000 inclusive of disbursements and HST and a reasonable amount of substantial indemnity costs to be awarded the applicant is $7500 inclusive of disbursements and HST for a total of $12,500.

[10] The applicant asks that he be permitted to pay the costs from his share of the proceeds of the matrimonial home when it is sold or alternatively that the payment of costs be suspended for a period of three years. No authority was presented in support of this submission. The costs are payable by the applicant forthwith.

G. E. Taylor J.

Released: March 15, 2012