SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-375799

DATE: 20130418

RE: Nancy Lowe, Applicant

AND:

Russell Robert Minor, Respondent

BEFORE: Czutrin J.

COUNSEL: Alexandra Abramian, for the Applicant

Harold Niman, for the Respondent

HEARD: Written Submissions

ENDORSEMENT

[1] This endorsement deals with another costs issue between the parties that I have had to deal with as the parties were unable to resolve temporary issues arising from their separation and requiring court decisions.

[2] The motion dealt with the Applicant wife’s urgent motion seeking to dispense with the Respondent husband’s consent to sell the matrimonial home and was heard by me on February 16, 2013.

[3] The sale of the home had been previously ordered and the motion dealt with the issue of accepting an offer.

[4] The Applicant was successful on the motion and seeks costs on a full recovery basis in the amount of $7,531.45.

[5] The Respondent takes the position that there should be no costs or, in the alternative, costs should be reserved to the trial judge.

[6] The Respondent’s costs’ submissions attempt to revisit my decision not to grant the husband’s request to adjourn the motion and granting the relief sought by the wife to accept the last offer from a purchase. Costs submission is not an appropriate time to question my ruling.

[7] On the date of the motion, after giving counsel the opportunity to see if the proposed purchasers would consider extending the time for acceptance of their signed back offer and they said no, I determined that the proposed offer should be accepted and came to the conclusions that the adjournment requested should be denied and the issue was urgent.

[8] The husband submits that his position not to accept the offer was not in bad faith, but was reasonable in that he sought to maximize the sale price. In fact, he was successful in getting the first offer increased and removing some chattels from the first offer. As a result, both parties benefit from his efforts.

[9] Given the history of this litigation, it seemed likely that a court would have to intervene as judges had already done so on several issues, including getting the house listed.

[10] Ultimately, unless the parties resolve their issues, a judge may be in a better position to determine credibility and whether the positions taken as a whole were in bad faith. Costs may ultimately have to be decided when the complete picture is known.

[11] While it is an easy temptation to put off costs to the trial judge (a discretion that I find remains under the Courts of Justice Act), the Family Law Rules speak to deciding costs at every step and a presumption that the successful party is entitled to costs.

[12] The goal of the presumption and deciding at each step include: parties knowing along the way, the costs incurred by bringing motions, for example, and to encourage resolution and discourage unnecessary steps. I see no reason to depart from awarding costs to the successful party at this time and for this step in this case.

[13] I fix costs at $4,000 payable by the husband to the wife. The costs, at the request of either party, may be revisited at trial to consider whether there was bad faith to address changing the quantum of costs.

Czutrin J.

Released: April 18, 2013