ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-09-0087
DATE: 2012-02-01
B E T W E E N:
CHRISTINE GUIGNARD
Mr. Robert Stead , for the Applicant
Applicant
- and -
DENNIS GUIGNARD
unrepresented
Respondent
HEARD: By way of written submissions
Mr. Justice D. C. Shaw
Decision on Costs
[ 1 ] This is a decision on costs. The case was tried over the course of three days. I released my decision on November 29, 2011. I reserved my decision on costs, pending receipt of written submissions from the parties.
[ 2 ] I note at the outset that submissions on costs were not to exceed five written pages exclusive of the parties’ respective Bills of Costs. Counsel for Ms. Guignard filed submissions in accordance with the order, but then filed supplementary submissions after reviewing Mr. Guignard’s submissions. Mr. Guignard then filed his own supplementary submissions, objecting to the filing of Ms. Guignard’s supplementary submissions. I agree with Mr. Guignard that no leave was granted for supplementary submissions. I therefore take into consideration only the initial submissions filed by each party.
[ 3 ] The issues determined at trial were:
a) Ms. Guignard’s claim for spousal support;
b) The value of Ms. Guignard’s pension for the purpose of equalization of the parties’ net family property.
[ 4 ] I awarded Ms. Guignard spousal support in the amount of $1700.00 per month. Ms. Guignard’s income was $35,514.00. I found Mr. Guignard’s income to be $90,248.00. The marriage was of 24 years duration. Support awarded was at the low end of the range suggested by the Spousal Support Advisory Guidelines (SSAG). It was for an indefinite period.
[ 5 ] I found that Ms. Guignard’s pension should be valued at $68,930.00, which was the midpoint of three actuarial valuations that I was given to choose from.
[ 6 ] The starting point in setting costs in a family law matter is rule 24(1):
24(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[ 7 ] In my opinion, neither party can be said to have been completely successful on the two issues that had to be resolved. Neither party made an offer to settle that would trigger the cost consequences of Rule 18.
[ 8 ] The amount of spousal support that was awarded was less than the amount requested by Ms. Guignard and more than the amount that Mr. Guignard submitted was appropriate. Ms. Guignard requested support at the mid to high range of the SSAG’s namely $1935 to $2212. Mr. Guignard submitted that support should be fixed at $1,300 per month. Mr. Guignard was successful in his position that his income for 2011 should be calculated at $90,248. Ms. Guignard initially argued that his income should be deemed to be a higher amount. Mr. Guignard submitted that spousal support should end after eight years. Ms. Guignard was successful in her position that support should not be limited.
[ 9 ] Success was divided on the issue of the value of Ms. Guignard’s pension. Ms. Guignard submitted that her pension should be valued at $47,284, based on a likely retirement age of 65. Mr. Guignard submitted that it should be valued at $93,252, based on a likely retirement age of 56.69, the earliest age at which Ms. Guignard could retire with an unreduced pension.
[ 10 ] I accepted Ms. Guignard’s evidence that she did not intend to retire at the earliest age on which she could retire with an unreduced pension. However, I also accepted Mr. Guignard’s evidence that the Hemlo gold mine, near Marathon, where Ms. Guignard works as a teacher aide has limited gold reserves and that if it closes, Ms. Guignard’s continued long term employment would be adversely affected.
[ 11 ] Rule 24(6) provides that where success in a case is divided, the court may apportion costs as appropriate.
[ 12 ] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act , which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[ 13 ] In C.A.M. v D.M., 2003 18880 (ON CA) , [2003] O.J. No. 3707 (C.A.) at para. 40 , Rosenberg J. held that the Family Law Rules have circumscribed the broad discretion granted by s. 131(1) of the Courts of Justice Act , but that they have not, however, completely removed the court’s discretion. I note that rule 24(11) (f) allows the court, in setting the amount of costs, to take into account “any other relevant matter.” Read in conjunction with s. 131(1) of the Courts of Justice Act , there remains a discretion to award costs that appear just in the circumstances of the case, while giving effect to the Rules.
[ 14 ] The Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice ( Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.), at p. 302.
[ 15 ] Counsel for Ms. Guignard seeks costs of $9,500. Mr. Guignard, who was unrepresented at trial, requests costs of $15,248.83, which is the amount of the equalization payment he owes Ms. Guignard, although he also submits that if the court considers this amount is too high, then he would accept $5,000, which is the amount he initially requested of Ms. Guignard in an attempt to settle the costs issue.
[ 16 ] Although success was divided, consideration must be given to the fact that it was necessary for Ms. Guignard to bring this case in order to obtain support and equalization of the parties’ net family property. However, because of the divided success at trial on the only issues that had to be decided (the issue of the division of chattels was settled part way through trial), the costs awarded should be tempered significantly.
[ 17 ] I believe it to be fair and reasonable to award Ms. Guignard costs of the case fixed in the sum of $3500, inclusive of HST.
[ 18 ] Of these costs, I attribute $2500 to the issue of spousal support. The sum of $2500 may therefore be enforced by the Family Responsibility as costs incurred for spousal support.
The Hon. Mr. Justice D. C. Shaw
Released: February 1, 2012
COURT FILE NO.: FS-09-087
DATE: 2012-02-01
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: CHRISTINE GUIGNARD Applicant - and – DENNIS GUIGNARD Respondent DECISION ON COSTS Shaw J.
Released: February 1, 2012
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