SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-11-1234
DATE: 20130814
RE: JEFFERY STACEY CUFFE, Applicant
AND
SYLVIE LOUISE DESJARDINS, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Douglas Menzies, for the Applicant
Mary Jane Binks and Michael Heikkinen, for the Respondent
HEARD: By Written Submissions
ENDORSEMENT regarding costs
J. MACKINNON J.
[1] The respondent seeks costs as the successful party after trial. She served an Offer to Settle on May 14, 2013. The applicant concedes it was more advantageous to him than the trial award. On this basis, the respondent asks for full indemnity costs from that date to the conclusion of trial, and for partial recovery costs up to the Offer date.
[2] The applicant submits that he should have costs up to May 14th because the respondent’s position to that date was very unreasonable, making litigation a requirement. Alternatively, he asks that no costs be awarded prior to May 14th because he says success was divided.
[3] He disputes the applicant’s entitlement to full costs after May 14th on the basis that, in his view, her Offer was served six days rather than the required seven days before trial.
Is the applicant entitled to any costs?
[4] In my view, he is not. The spousal support release was set aside and the respondent was awarded a $60,000 lump sum and significant ongoing periodic support. This award exceeded both of the applicant’s Offers to Settle by a wide margin. Success was only divided in the sense that the property aspects of the contracts were upheld in the applicant’s favour. This outcome cannot be regarded as divided success.
Was the May 14th Offer served seven days before trial?
[5] The Offer was served on May 14th. The trial commenced on May 21st. Family Law Rule 3(1) provides:
3.(1) In these rules or an order, the number of days between two events is counted as follows:
The first day is the day after the first event.
The last day is the day of the second event. O. Reg. 114/99, r. 3 (1).
[6] Subrule (4) provides a chart to assist in understanding how time is counted pursuant to the Rule. This is instructional and provides:
3.(4) The following are examples of how time is counted under these rules:
- Notice of a motion must be served not later than four days before the motion date (see subrule 14 (11)). Saturday and Sunday are not counted, because the notice period is less than seven days (see subrule (2)). Service on the day set out in the left column below is in time for the motion to be heard on the day set out in the right column below.
Service on
Motion may be heard on the following
Monday
Friday
[7] Applying the same method, the May 14th Offer was served “not later than 7 days” before the trial. I do not think it is useful to apply a different meaning to the words “at least 7 days” as they appear in Family Law Rule 18(14) which states:
18.(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
- If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
[8] I have also referred myself to civil Rule 3.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, which states:
3.01(1) In the computation of time under these rules or an order, except where a contrary intention appears,
(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used;
No useful purpose is served by a computation of time under the Family Law Rules inconsistent with that set out in the civil Rules.
[9] In any event, in this case, I would exercise my discretion under subrule 18(16) to award full indemnity costs for the trial given the extent to which the Offer was more generous to the applicant than the trial award.
18.(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).
What should the Costs be?
[10] I have considered a number of factors in assessing the amount of costs. The first is that the preparation and effort respondent’s counsel put into the case appears to have been exhaustive. Although successful, proportionality is engaged. So is the concept of an amount of costs reasonably within the contemplation of the other party. I also commend respondent’s counsel for her mentorship of junior counsel, but do not regard this as a case requiring two trial counsel for which the other party should be liable to contribute.
[11] Second, the respondent’s first Offer made in August 2012 was reasonable on the issue of spousal support but also required $225,000 as an equalization payment. In my view, combined, that was an unreasonably high demand. This was her only Offer until May 14, 2013.
[12] Third, the respondent is able to deduct her legal fees for income tax purposes. I have been provided with a marginal rate of tax of 32% in the actuarial report filed at trial.
[13] Fourth, the applicant’s first Offer included no property division or spousal support. His second Offer was to rollover $60,000 from an RRSP. This was significantly below the trial award.
[14] Having regard to these considerations, I have fixed the respondent’s costs at $48,500 inclusive of fees, disbursements and HST.
J. Mackinnon J.
Date: August 14, 2013
COURT FILE NO.: FC-11-1234
DATE: 20130814
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JEFFERY STACEY CUFFE, Applicant
AND
SYLVIE LOUISE DESJARDINS, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Douglas Menzies, for the Applicant
Mary Jane Binks and Michael Heikkinen, for the Respondent
ENDORSEMENT regarding costs
J. Mackinnon J
Released: August 14, 2013