SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 42581-09
DATE: 2012-11-20

RE: Chad Bernhardt Strassburger, Applicant

AND:
Michelle Elizabeth Strassburger, Respondent

BEFORE: The Honourable Mr. Justice R. D. Reilly

COUNSEL:
Michael B. Wannop, for the Applicant
Lorrie Stojni, for the Respondent

RULING AS TO Costs

by the honourable mr. justice r.d. reilly

[ 1 ] By judgment released August 17, 2012, I directed counsel if they were unable to agree on costs to make brief written submissions to me in chambers. Counsel have now submitted extensive written reasons. The applicant/husband is requesting costs in the amount of $67,500. The respondent/wife is seeking costs in the amount of $66,331, or in the alternative, the respondent seeks an order that each party shall bear their own costs.

[ 2 ] It is clear that the applicant/husband was largely successful at trial, which lasted some five days from June 12 – June 19, 2012. I am mindful of the rules which govern the awarding of costs. It is clear that success at trial presumptively entitles the successful party to costs. That presumption, however, is not necessarily determinative. I am mindful of section 131 of the Courts of Justice Act , as well as the Family Law Rules , which direct the court in the according of costs. I have carefully considered those rules and the appropriate jurisprudence.

[ 3 ] This was a very litigious matter involving allegations of bad faith, directed by both parties. I conclude there was merit in law to each of their respective positions, as was evidenced by the decision of Madam Justice MacPherson in her ruling on the interim motion in Strassburger v. Strassburger 2010 CarswellOnt 1481 (Ont.S.C.) . In her ruling, Madam Justice MacPherson found merit to the respondent/wife’s position, ruling in her favour and awarding costs against the applicant/husband of $20,000. The applicant/husband seeks compensation for these costs. I decline to award such compensation. This court will not sit on appeal from the interim order directed by Madam Justice MacPherson. Those costs apparently have been paid. I do, however, take into account such payment in my overall assessment of the costs which the applicant/husband is entitled to, given his success at trial. I take into account as well the costs award of Mr. Justice Taylor directed on February 16, 2012, of $7,500 “payable in the cause”.

[ 4 ] The principal residence of the children, Rachel and Cole is with the respondent/wife. This is a factor I cannot overlook in terms of the consequences of any costs ruling. The factors which govern the determination of costs still permit some discretion on the part of the court. Justice Perkins, in the case of Biant v. Sagoo , 2001 28137 stated in part at para. 17:

17 Subrule (11), the list of factors to consider in setting costs, appears to be aimed principally at whether the costs claimed were properly incurred or are proportional to the issues or result. However, the list also includes the reasonableness or unreasonableness of a party’s behaviour in the case. “Any other relevant matter” in r. 24 (11)(f) is a sort of basket clause that would appear to cover matters such as ability to pay, but it receives much less prominence than the presumption in r. 24(1).

[ 5 ] In the case of C.A.M. v. D.M. , 2003 18880 , Justice Rosenberg made the following comments at para. 40:

[40] Reference should also be made to s. 131(1) of the Courts of Justice Act , which provides that subject to the provisions of an Act “or rules of court, the costs of and incidental to a proceeding ... are in the discretion of the court”. It is apparent that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1). See Biant v. Sagoo at para. 15 . They have not, however, completely removed the trial judge’s discretion. Thus, the general provision, Rule 24(1), enacts a “presumption” that the successful party is entitled to costs of the case but does not require that the successful party is always entitled to costs.

[ 6 ] Justice Rosenberg continued at para. 42:

[42] I am also of the view that the financial situation of the parties can be taken into account in setting the amount of the costs award either under Rule 24 or Rule 18. Thus, while subrule 24(11) enumerates a number of factors that must be taken into account, the person setting the amount of the costs is directed to take into account “any other relevant matter”. I agree with Aston J. in Sims-Howarth at para. 4, that the “ Family Law Rules demand flexibility in examining the list of factors in subrule 24(11) without any assumptions about categories of costs”. In my view, a consideration of particular relevance may be the financial position of the parties, especially of an unsuccessful custodial parent. See Biant at para. 17 and Brennan v. Brennan , [2002] O.J. No. 4743 (S.C.J.) at para. 11 . In fixing costs the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.

[ 7 ] Justice Aston, in Ramsay v. Ramsay , 1999 15027 stated at para. 10 :

[10] ... In any event, the “presumption” that success determines entitlement to costs does not mean that a successful party is always entitled to costs, unless that party has “behaved unreasonably” as contemplated under subrule 24(4). In my view, the court’s discretion under section 131 of the Courts of Justice Act is wider than that and still allows for consideration of the factors expressed by Judge Katarynych in Beaumont v. Fransden, supra . There may be an increased emphasis on the outcome or “success” as a factor, but the fact that success is only presumptive under subrule 24(1) invites consideration of other factors. Otherwise, subrule 24(1) would simply read “A successful party is entitled to costs”.

[ 8 ] Taking into account the success of the applicant/husband’s position at trial, he is unquestionably presumptively entitled to an award of costs. The quantum of those costs, however, must take into consideration the respective financial positions of the parties and the fact that the children reside primarily with the mother. Taking all factors into consideration, I direct that the respondent/mother shall pay costs to the applicant/father, which I set at $37,000, inclusive of disbursements and taxes. This quantum also includes $7,500 directed by Justice Taylor to be paid “in the cause”. I further direct that the respondent/wife shall pay these costs from her share of the proceeds of the sale of the matrimonial home. If the home does not sell expeditiously, the respondent/wife shall satisfy such costs award effective the 1st of July, 2013. As of that date, the applicant/husband shall have a right of set-off of this costs award with respect to his obligation to pay spousal support. This costs award shall attract no prejudgment interest. Post-judgment interest shall apply.

R.D. Reilly J.

Released: November 20, 2012