SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-97-19

DATE: 2013-01-24

RE: JODY KENNTH SCOTT CARRIGAN, Applicant

AND:

LEONA MICHELLE BREWER, Respondent

BEFORE: The Honourable Mr. Justice D. A. BROAD

COUNSEL:
C. Richard Buck, for the Applicant

Michael David Lannin, for the Respondent

Costs ENDORSEMENT

[1] The parties have each made written submissions with respect to costs in accordance with my Reasons for Judgment released December 6, 2012. The following is my disposition on the question of costs.

[2] The Applicant advanced a claim to an interest in the Oneida Place property owned by the Respondent, pursuant to the Separation Agreement entered into on December 19, 2005, or alternatively on the basis of a remedial constructive or resulting trust. The Respondent claimed that, as the parties never married, a property division regime should not be imposed on them, or in the alternative, that the provision in the Separation Agreement dealing with a possible future “equalization” of net family property should not be enforced. In the further alternative, the Respondent argued that she should have an interest in the Hofstetter Avenue property owned by the Applicant on the basis that she had advanced the down payment for its purchase to him. The Respondent argued that the Applicant had underpaid child support and claimed payment of arrears, and the Applicant argued that he had overpaid child support and that the Respondent owed arrears of child support to him and was obliged to pay ongoing child support.

[3] In the result the Applicant’s claim to an interest in the Oneida property was dismissed, as was the Respondent’s claim to an interest in the Hoffstetter property. The Respondent was ordered to pay the sum of $11,280.00 to the Applicant, representing reimbursement of overpayment of child support by him, and arrears of child support by her. She was also ordered to pay ongoing child support in the sum of $65.00 per month commencing October 1, 2012, representing a discounted set-off amount under the Federal Child Support Guidelines.

[4] The Applicant submits that he was more successful in the result, on the basis that each party’s claim to an interest in the property of the other was dismissed, and the Respondent’s claim for arrears of child support in the sum of $27,078.00, including interest, was dismissed, and she was ordered to pay arrears of child support to the Applicant in the sum of $11,280.00. He argues that this represents a successful result for the Applicant in the sum of $38,358.00, exclusive of the interest calculation, being the difference between the parties’ positions on child support at trial.

[5] The Respondent argues that she was more successful than the Applicant at trial, on the basis of the determination that she had a full interest in the Oneida property.

[6] The Applicant served three formal Offers to Settle dated April 4, 2011, June 11, 2012 and June 20, 2012. Each of the Applicant’s Offers called for a payment to him in respect of an interest in the Oneida property, giving credit for the Respondent’s contribution to the purchase of the Hoffstetter property. However, the third Offer called for the Applicant to forego his claim for arrears of child support as well as prospective child support in the sum of $89.00 per month.

[7] The Respondent made no formal Offers to Settle. The only offers she made were in her conference briefs which counsel advises did not address child support but essentially offered that the Respondent receive a proportional share in the Hoffstetter property. I presume from this that her offers did not address the Oneida property.

[8] Subrule 24(1) of the Family Law Rules states that there is a presumption that a successful party is entitled to the costs of a case, unless, as provided in subrule 24(4), that party has behaved unreasonably, in which case, he or she may be deprived of all or part of his or her costs or ordered to pay all or part of the unsuccessful party’s costs.

[9] Under subrule 24(6), if success is divided, the court may apportion costs as appropriate.

[10] Subrule 24(11) sets forth the factors to be considered by the court in setting the amount of costs, including the importance, complexity or difficulty of the issues, the reasonableness of each party’s behavior, the lawyer’s rates, the time properly spent on the case, the expenses properly paid and any other relevant matter.

[11] Rule 18 deals with the effect of offers to settle on costs. Subrule 18(14) provides that a party who makes an offer under the rule (including a requirement that it be signed by the party and his or her lawyer, if any), unless otherwise ordered, is entitled to costs to the date of the offer and full recovery costs thereafter, if the listed conditions are met, most notably that the party making the offer obtains an order that is as favourable, or more favourable, as the offer.

[12] Subrule 18(16) entitles the court to take into account any written offer to settle in exercising its discretion over costs.

[13] In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that for the purpose of Rule 24(1) “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of offers to settle.

[14] Justice Murray also held, at para. 19, citing Coscarella v. Coscarella 2000 20376 (ON SC), [2000] O.J. No. 207 (Ont. SCJ), that the automatic costs consequences of subrule 18(24) only apply if a litigant obtains an order at least as favourable as his or her offer on all issues.

[15] In this case, although the Applicant demonstrated flexibility in his Offers to Settle on the issue of child support, he held fast to his claim to an interest in the Oneida property. None of his Offers trigger the automatic costs consequences of subrule 18(24).

[16] I do not consider the lack of success of claim of the Respondent to an interest in the Hoffstetter property as offsetting the Applicant’s lack of success on his claim to an interest in the Oneida property, thereby leaving the Applicant as the more successful party as a consequence of the child support award being made in his favour. The Respondent’s claim to an interest in Hoffstetter was only pleaded in the alternative, and simply represented an assertion that if the Court found favour with the Applicant’s claim to an interest in Oneida, her contribution to his acquisition of Hoffstetter should also be recognized. It was not asserted as a stand-alone claim, but was linked to the Applicant’s claim to an interest in Oneida.

[17] In the end, the Applicant was unsuccessful on his property claim, but was successful on the child support issue. The monetary value of his claim to the Oneida property, based upon its value at the date of separation, less the outstanding mortgage, and giving credit for the Respondent’s advance for the purchase of Hoffstetter, being the sum of approximately $35,000 (see the Applicant’s Offers to Settle of June 11 and June 20, 2012) was roughly equivalent to his success on the child support issue in the sum of $38,358.00, as indicated above.

[18] As was observed by Justice Platana in the case of Petit v. Petit 2009 CarswellOnt 3841 (Ont. SCJ), it can be said that, given the ill-conceived and problematic provision in the Separation Agreement for which they share responsibility, and the fluidity of the custody and access situation involving the children, this was a case that was justifiably brought by the Applicant, and justifiably defended by the Respondent. Neither party acted in bad faith, nor did they behave inappropriately in the conduct of the case.

[19] Given the divided success in the case, and for the reasons set forth above, I am of the view that it is appropriate that there be no order as to costs. Each party shall therefore bear their own costs.

D. A. Broad J.

Date: January 24, 2013