Superior Court of Justice - Ontario

Court File No.: 5719/11
Date: 2012/10/02

RE: Julie Jo Jacob, Applicant

AND:
William Paul Andrew Jacob, Respondent

Before: The Honourable Mr. Justice Reid

Counsel:
Robert MacLeod, Counsel, for the Applicant

Drew Bowyer, Counsel, for the Respondent

Kathryn Junger, Counsel, for the Office of the Children’s Lawyer

Heard: August 17, 2012

COSTS ENDORSEMENT

[ 1 ] Three motions were heard by me in this matrimonial matter. My endorsement was released August 24, 2012 and I invited cost submissions to be filed within five weeks if no agreement was reached. Submissions have been received from both parties.

[ 2 ] The respondent was successful on three claims, none of which was contested at the motion hearing: requiring the former listing agent to produce a copy of the original listing agreement for the matrimonial home; requiring the Children's Aid Society to provide a copy of the record of its involvement with the family; and allowing for the questioning of the parties.

[ 3 ] The respondent was not successful in seeking the removal of the designated counsel from the Office of the Children's Lawyer who has been assigned to represent the interests of the child of the marriage. The OCL representative attended to argue that part of the motion but did not request an order for costs. There will therefore be no order for costs in favor of the OCL.

[ 4 ] The respondent was not successful in arguing that the court should establish the date of separation of the parties in advance of the trial and similarly was not successful at establishing the details and propriety of the removal of $49,000 from the parties’ bank account by the applicant. I indicated in my endorsement that it is preferable for both those matters be dealt by the trial judge.

[ 5 ] The major issue between the parties involved making arrangements for the sale of the matrimonial home. This issue occupied the bulk of the time during the hearing. The applicant submitted that the respondent has been consistently and effectively frustrating her efforts to have the premises sold over the past year. The respondent continues to reside there. The applicant has been and certainly will be maintaining most of the carrying costs. The respondent disagrees with the suggestion that he has impeded the sale and takes the view that the applicant is attempting to have the price reduced so that she can purchased the home at an amount below market value. There have been two prior motions where the subject of the listing and sale of the home has been litigated.

[ 6 ] On the home sale issue, the applicant was successful in receiving an order giving her control over the listing and sale process with directions as to the choice of listing agent and terms of the listing.

[ 7 ] The applicant submits that she was substantially successful on all contested aspects of the motions, and submits that costs should be payable by the respondent based on a substantial indemnity rate.

[ 8 ] The applicant has filed costs submissions indicating that, since January 9, 2012, a total of 17.9 hours have been spent on the file, of which 12 hours relate to the subject of the motions. She seeks an award of $4,000 costs inclusive of HST. The correct total of the entries identified by counsel as being related to the motions is actually 11 hours.

[ 9 ] The respondent submits that success was divided and seeks an order for no costs. He indicates that the issues were all of significant importance, including those on which the respondent was successful.

[ 10 ] The respondent appears to understand that the applicant is seeking full compensation for the entire 17.9 hours, to which he objects since not all the time was related to the motions. As noted above, a more accurate review of the applicant’s cost claim appears to disclose that only time related to the motions is claimed, totalling 11 hours.

[ 11 ] There were no offers to settle filed by either party.

[ 12 ] In my view, while it is clear that there was some division of success, the applicant was successful in all the contested matters which occupied most of the parties’ time in court. In particular, the applicant was successful on the main issue relating to the sale of the matrimonial home.

[ 13 ] As to the appropriate scale of costs, there is no reason to award costs on a substantial indemnity basis. In the absence of offers, I am not prepared to find that the conduct of the respondent was so egregious that a substantial indemnity award, with its punitive consequences, is required.

[ 14 ] Eleven hours at a partial indemnity rate of $200 per hour produces a total of $2,200 which, with the addition of HST becomes $2,486. Given that there was some division of success, I am fixing costs to be paid by the respondent to the applicant in the amount of $2,000, inclusive of HST.

[ 15 ] The parties acknowledge that the respondent is not in a financial position to pay costs forthwith or within a short period of time as would normally be required. They both agree that any costs award against the respondent should be paid by him out of his share of the proceeds of the sale of the matrimonial home. Therefore, I order that this costs award, to the extent that it is still outstanding, will be paid out of the respondent’s share of the sale proceeds forthwith upon the closing of the sale. Interest is also payable from this date to the date of payment at the rate of 3% per annum, pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Reid J.

Date: October 2, 2012