COURT FILE NO.: FC-10-258-00

DATE: 20120927

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRENDA NICHOLSON, Applicant

AND:

IAN NICHOLSON, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
M. Miller, for the Applicant
Respondent Self-Represented

HEARD: By written submissions

Costs ENDORSEMENT

[ 1 ] This is an endorsement regarding costs following the trial decision released on August 8, 2012 as 2012 ONSC 4569.

[ 2 ] A timeline for written submissions was imposed, such that the applicant’s were due by August 17, 2012, the respondent’s by August 24, 2012 and any reply by August 29, 2012.

[ 3 ] The respondent requested an extension for his submissions, which was granted to September 10, 2012. However, he did not file any submissions.

[ 4 ] The applicant seeks her costs on a partial indemnity basis fixed in the amount of $26,234.32.

[ 5 ] On May 21, 2012 the respondent submitted an offer to settle the proceeding which set out three options for acceptance. None of the three provided for monthly spousal support payments of greater than $1,900. The lowest equalization payment that the respondent would accept was zero, however that was contingent on the applicant releasing any right to a share in his pension. Beyond that, the respondent was prepared to accept an equalization payment of $25,000, but only if his spousal support payments were set at $1,500 per month. He was willing to make spousal support payments of $1,900 per month, but only if the equalization payment was $58,467.

[ 6 ] The applicant made a formal offer to settle on May 30, 2012. In all respects, the trial judgment met or exceeded her offer to settle, with the exception of the equalization payment. In her offer to settle, the applicant offered to make an equalization payment of $14,250 from her share of the sale proceeds of the matrimonial home. The judgment rendered at trial requires the applicant to pay the respondent the amount of $34,073 from her share of the sale proceeds.

[ 7 ] The judgment also fixed spousal support arrears at $11,538.76, whereas in the applicant's offer to settle she sought no retroactive spousal support. Accordingly, pursuant to the judgment, the applicant will pay to the respondent the amount of $22,534.24, arrived at by subtracting the support arrears of $11,538 from the equalization payment of $34,073.

[ 8 ] The applicant argues that she should have her costs because the difference between what she offered and what she will be paying is only $8,284.24, and should not have resulted in a trial. Further, none of the respondent's offers were as favourable to her as the result she achieved at trial.

[ 9 ] Although the applicant had substantial success, her Rule 18 offer does not meet the criteria set out in subrule 18(14), in that it cannot be said that she obtained an order that was as favourable or more favourable than her offer.

[ 10 ] Nonetheless, the court is entitled to consider any written offer to settle in determining costs. In addition to the factors set out in subrule 24(11), I take into account that the applicant's settlement offer came very close to the results achieved at trial, and the fact that the respondent’s offer to settle did not come close to the orders made at trial. I also take into consideration that the respondent did not make timely documentary disclosure; some of the documents that were permitted to be entered into evidence at trial were documents that had never before been shown to the applicant's lawyer. In particular, the documents surrounding the settlement of his personal injury action, which were pivotal documents in bolstering the respondent’s equalization claim, had not been produced in advance. When the applicant made her offer to settle, she did not have the information necessary to calculate the respondent's potential equalization claim. As such, she did not have the information necessary to make an informed decision about the outcome of the litigation and on what terms, in relation to that litigation risk, she should formulate an offer to settle. Because her offer came so close to the trial outcome, and she was prejudiced by the respondent’s late disclosure, I am satisfied that she should have her costs of the application.

[ 11 ] I have reviewed the Bill of Costs submitted by the applicant, in which she seeks her costs on a partial indemnity basis. Mr. Miller's full indemnity rate is $350 per hour. His bill of costs is calculated on a rate of $300 per hour. The maximum cost rates when fixing partial indemnity costs that have been set up by the Cost Subcommittee of the Civil Rules Committee indicates that, for a lawyer of Mr. Miller's experience, a maximum of $350 may be charged. However, on a partial indemnity rate of 75% of full indemnity, his actual hourly rate should be calculated at $262.50. Using this lower rate, the fees calculated for all steps taken on the trial up until attendance at trial calculated at 54.65 hours or $16,395, should be reduced to $14,346. Total fees are therefore properly calculated at $19,504 plus HST of $2,535.52. The balance of the Bill of Costs is reasonable, including the number of hours devoted to the various steps taken. The costs of the applicant on a partial indemnity basis are therefore calculated as:

Fees $19,504.00

HST on fees $ 2,535.52

Taxable disbursements $ 1,276.66

HST on disbursements $ 165.97

Non-taxable disbursements $ 437.00

Total $ 23,919.15

[ 12 ] This court orders that the respondent shall pay to the applicant her costs of the proceeding fixed in the amount of $23,919.15 and payable immediately, to be set off in part against the equalization payment owed to the respondent.

[ 13 ] Based on the orders made at trial, unless the amounts set out in the judgment have already been disbursed from the sale proceeds, this costs order will result in the proceeds of the matrimonial home being divided equally, with the only transfer of funds from one party’s share to the other being a payment of $1,384.91 from the respondent to the applicant to satisfy the cost order in full.

HEALEY J.

Date: September 27, 2012