SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-0825-00
DATE: 20120514
RE: Berta Costa, applicant
v.
Moises Costa, respondent
BEFORE: MacKenzie J.
COUNSEL:
M. M. Rodenburg, for the applicant
J. L. Eason, for the respondent
C O S T S E N D O R S E M E N T
[ 1 ] By endorsement dated March 7, 2012, I varied the spousal support payable by the respondent to the applicant in the amount of $2,900 per month pursuant to a temporary order dated August 16, 2011 to $2,000 per month.
[ 2 ] I noted in paragraph 42 of the March 7, 2012 endorsement in relation to costs that “The respondent has been significantly successful in responding to the wife’s claims in this matter.” I then indicated that I would deal with any offers to settle made within the meaning of Rule 18 of the Family Law Rules in the context of addressing the entire question of costs.
[ 3 ] I have since received written submissions of the parties relating to costs issues. Both parties refer to Rule 24(1) of the Family Law Rules, stating that a successful party is entitled to costs and to Rule 24(5)(b) which states, in part, that in determining whether a party has behaved reasonably or unreasonably in the litigation, the court shall examine the reasonableness of any offer the party made.
[ 4 ] In this regard, the respondent submits that his offer of spousal support prior to trial was $1,951 per month and that the applicant’s position and basis for settlement was for support of $2,900 or $3,000 per month.
[ 5 ] In these circumstances it is the respondent’s position that his settlement position of $1,951 per month was significantly closer to the award of $2,000 per month than the applicant’s position of $2,900 or $3,000 per month.
[ 6 ] The position of the applicant is set out in paragraph 13 of her counsel’s written submissions on costs issues. In paragraph 13, counsel states that the support awarded, after trial, i.e. $2,000 per month, was more favourable to the applicant than any of the offers submitted by the respondent. Counsel states that in these circumstances “Mrs. [Costa] was the successful party” and that her “ultimate recovery was, however, more favourable than their respective offers to settle.” and that “she (Mrs. Costa) is therefore entitled to party and party costs throughout...”
[ 7 ] I disagree with this contention. The applicant’s settlement position was for essentially the same amount of spousal support as was set out in the order of August 16, 2011, namely $2,900 per month. The respondent’s settlement position was $1,951 per month. The award or “ultimate recovery” after trial of the issue was $2,000 per month. Although neither parties’ settlement position was congruent with the $2,000 per month award, simple arithmetic indicates that there was less of a numerical disparity between the husband’s position, namely $49 per month, than the wife’s position, namely $900 per month.
[ 8 ] I reject the submission of counsel for the applicant that the applicant was the successful party at the trial of the spousal support issues.
[ 9 ] Counsel for the respondent submits that the respondent has been substantially successful in this matter and that he should accordingly be entitled to some measure of costs compensation, the suggested quantum of which should be 2/3 of the award that would otherwise be given for complete success.
[ 10 ] In his costs outline, counsel sets out fees on an hourly rate of $250 per hour for his year of call being 1977 for a total of $8,480 plus HST for a grand total of $9,582.40.
[ 11 ] I am unable to conclude that either party has acted unreasonably in the proceedings on the whole; however, I must consider the reasonableness of each parties’ offer to settle in light of the ultimate award. On this basis, I award the respondent costs of $5,000, all inclusive, payable by the applicant in 12 equal monthly instalments. Each instalment of $416.67 shall be payable on the first day of the month, commencing the first day of the month following the date of issuance of this endorsement. Such payment shall be made by the applicant by way of debit or deduction against the monthly spousal support payment of $2,000 per month payable by the respondent to the applicant.
MacKenzie J.
DATE: May 14, 2012
COURT FILE NO.: FS-08-0825-00
DATE: 20120514
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Berta Costa, applicant v. Moises Costa, respondent BEFORE: MacKenzie J. COUNSEL: M. M. Rodenburg, for the applicant J. L. Eason, for the respondent COSTS ENDORSEMENT MacKenzie J.
DATE: May 14, 2012