ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-3091-1
DATE: 2013-06-12
BETWEEN:
Catherine Agnes Egan
Applicant
– and –
Warren William Burton
Respondent
Rodney Cross, for the Applicant
Graeme Fraser, for the Respondent
HEARD: May 21-23, 2013
COsts DECISION
T.D. RAY, J
[1] The principal issue in dispute and which occupied the majority of the trial time was the applicant’s claim that the respondent’s cottage was a matrimonial home, entitling her claim as part of the Net Family Property the value of the cottage as at the date of their marriage. That being said, there were other issues the parties asked that I determine.
[2] The parties have not yet divided their personal items. I agreed at the conclusion of the trial to assist the parties in reaching a decision. I was assured by the applicant that the parties would be able to work out an agreement. However,if they are unable to reach an agreement, they may arrange a brief hearing through the trial coordinator. Any arrangements should be made within the next 14 days otherwise I shall assume the parties have no need of my assistance.
[3] On the basis of my decision (2013 ONSC 3063) the parties have agreed that the final equalization payment owing by the respondent to the applicant is $149,524.42. It was understood that the applicant would stay in the matrimonial home, and would buy out his interest. The parties have agreed therefore that the applicant will pay the respondent $45,475.58. The respondent had made a formal offer to settle August 31, 2012 that the applicant would pay the respondent $75,000, and she would retain the matrimonial home. A more recent offer of May 20, 2013, added the provision that if the respondent survived the applicant, that he would transfer the value of the survivor benefit ($62,179.00) to her estate. The respondent says that would have involved the applicant paying the respondent $12,821.00. The respondent claims costs of $25,000.
[4] Neither of these offers was taken up. The respondent made a formal offer September 27, 2012, in which she agreed that the respondent would have the cottage free and clear and she would have the house on Chatelain. That was not accepted. The applicant’s position is that in ‘winning’ on the cottage issue but ‘losing’ on the claim for occupation rent, and the survivor benefit, that he is “only up in the final analysis by $11,766.65”. As a consequence the applicant says success is divided and there should be no costs.
[5] No party beat their formal offer.
[6] I consider the respondent to be the successful party, particularly in light of the fact that the trial was mainly preoccupied with the applicant’s claim to the cottage. The applicant conceded in submissions that her claim may look unfair but that I should essentially hold my nose and make the order in her favour. The applicant was unfair in her claim. Had she not persisted, I am quite satisfied that this case would have been settled a long time ago. The respondent is entitled to his costs. He is the successful party.
[7] However, I am unable to assess the respondent’s costs on the basis of his written submissions, which are of very limited assistance. His “Bill of Costs” is not in the proper form but merely asserts an amount without any summary or breakdown. He has attached an accounting but it only runs from September, 2012. Even his accounting contains no breakdown of the claim for fees and disbursements.
[8] The respondent may file his claim for costs in the proper form with a copy to the applicant for his comments within 10 days, and a further 5 days for comments from the applicant. There will be no costs awarded to the respondent for these costs submissions.
Honourable Justice Timothy Ray
Released: June 12, 2013
COURT FILE NO.: FC-3091-1
DATE: 2013-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catherine Agnes Egan
Applicant
– and –
Warren William Burton
Respondent
COSTS Decision
Honourable Justice Timothy Ray
Released: June 12, 2013