ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-650
DATE: 2013/03/25
BETWEEN:
MARGARET FIONA MASON
Applicant
– and –
PHILIP MASON
Respondent
Ron Paritzky, for the Applicant
Jonathan M. Richardson, for the Respondent
HEARD: (written submissions)
Decision on COSTS
KERSHMAN J.
[1] The parties argued the motion on November 16, 2012. A decision was rendered November 20, 2012. The parties were unable to resolve the issue of costs. This decision deals with the issue of costs.
Applicant/Wife’s Position
[2] The Wife’s motion sought prospective and retrospective spousal support and complimentary relief relating to security for support. The parties were able to resolve some issues prior to the motion. At the motion itself several issues related to real-estate in Ottawa, La Conception and in Britain as well as other issues were resolved.
[3] As of the date of the motion the Husband was paying spousal support of $3,000.00 per month, an amount determined by him.
[4] The Court ordered, on a without prejudice basis, that the Wife was awarded interim spousal support of $7,000.00 per month retroactive to April 1st, 2012. The amount of retroactive support from the date of separation to March 1, 2012, was to be determined by the trial judge.
[5] The Wife’s counsel argues that she was successful on that basis alone and accordingly should be awarded costs.
[6] The Wife also argues that the Husband refused to provide support voluntarily until the 11th hour based on an Offer to Settle.
[7] The Wife argues that none of the Offers to Settle, neither hers nor the Husband’s, matched or bettered the amount granted in the decision and accordingly neither party would be able to avail themselves of the cost consequences associated with Rule 18 of the Family Law Rules, O. Reg. 114/99.
[8] The Wife seeks costs fixed at $5,000.00, reflecting costs on a discounted, partial indemnity basis.
[9] The Wife also argues that should the Husband be entitled to costs that the Court should follow the decision of Justice Linhares de Sousa in Bautista v. Bautista, 2002 46582 (ON SC), [2002] O.J. No. 3077, wherein the Court declined to award costs in favour of the successful party because of its failure to provide “expeditious and complete financial disclosure” which contravened the guiding objectives of the Family Law Rules, O. Reg. 114/99, to deal with cases justly.
Respondent/Husband’s Position
[10] The Husband argues that following the concessions made by both sides at the motion, the only issues remaining at the motion were the quantum of prospective and retrospective spousal support and the start dates.
[11] The Husband argues that he made an Offer to Settle dated November 14, 2012 wherein he offered to pay the Wife $6,500.00 per month in retroactive support starting January 1, 2012 for a total of retroactive payment of $78,000.00. With a credit for support paid of $15,000.00, the Husband would owe the Wife $63,000.00 in retroactive support for 2012. The Husband offered to review the provision for 2012 spousal support based upon learning of any additional bonus owing to the Husband for 2012. For 2013, spousal support would be paid at a rate of $7,000.00 per month.
[12] The Husband argues that this made the Offer to Settler more favorable than the award at the motion by virtue of the fact that his offer was a total of $63,000.00 in retroactive support as opposed to the $41,000.00 offered.
Analysis
[13] The Court is satisfied that the Wife was successful on the motion and should be entitled to costs or a partial indemnity basis subject to the determination of whether the Husband’s Offer to Settle was better than the award on the motion.
[14] The Husband argues that the Offer to Settle contains a payment of spousal support from January 1, 2012 to December 31, 2012 of $6,500.00 per month or $78,000.00. He argues that this is greater than the $63,000.00 awarded from April to December inclusive of $7,000.00 per month.
[15] While the Court acknowledges that the total amount of $78,000.00 was higher than the $63,000.00, the Court is not satisfied that the Offer to Settle in relation to that amount is better than the award made at the motion for the following reasons:
the award only dealt with 9 months of the year whereas the Offer to Settle dealt with 12 months of the year;
the Court does not know what the Trial Judge will do with the January 2012 to March 2012 portion of spousal support.
the Court is of the view that $7,000.00 per month for interim spousal support is greater than the $6,500.00 per month offered by the Husband.
[16] For these reasons, the Court finds that the Offer to Settle is not as favourable as the amount awarded at the hearing of the motion.
[17] Furthermore, the balance of the interim spousal support payable from April to November 2012 of $41,000.00 (($7,000.00 x 8)=$56,000.00 - $15,000.00) was ordered to be paid within 45 days of November 20, 2012.
[18] In the Offer to Settle, the Husband offers to pay the amount of the arrears on or before April 30, 2013. The payment of the arrears within 45 days of November 20, 2012 is far better than a payment of the amount by April 30, 2013.
[19] The Court has reviewed the partial indemnity costs claimed by the Wife and finds that $5,000.00 is a reasonable amount for costs in this matter on a partial indemnity basis. Having reviewed the factors in Rule 24(11) of the Family Law Rules, this Court finds that costs of $5,000.00 shall be paid from the Husband to the Wife and shall be paid within the next 30 days. The $5,000.00 is inclusive of fees, disbursements and HST.
[20] In the event that the costs are not paid within 30 days, the Husband shall not be able to take any further step in the litigation until the costs are paid. The Court finds that these costs are in relation to spousal support.
[21] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: March 25, 2013
COURT FILE NO.: FC-12-650
DATE: 2013/03/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARGARET FIONA MASON
Applicant
– and –
PHILIP MASON
Respondent
DECISION ON COSTS
Kershman J.
Released: March 25, 2013