BARRIE COURT FILE NO.: FC-11-1236

DATE: 2013-09-11

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

RUTH TRIPODI

Applicant

– and –

BRUNO TRIPODI

Respondent

M. Greenstein, for the Applicant
A. Chapman, for the Respondent

HEARD: by written submissions

REASONS FOR DECISION ON COSTS

R. MacKINNON, J.

[1] The parties advise they have been unable to agree on costs. I have now fully considered their submissions.

[2] Rule 24(1) of the Family Law Rules provides for a presumption that the successful party is entitled to costs. Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or a part of his or her own costs or ordered to pay all or a part of the unsuccessful party’s costs. In determining reasonableness, a court will examine the parties’ behaviour in relation to issues from the time they arose including whether a party made an offer to settle, the reasonableness of any settlement offer made, and any offer the party withdrew or failed to accept. If success in a step in a case is divided, rule 24(6) provides that the court may apportion costs as appropriate.

[3] I have now had a chance to review the parties’ pretrial Offers to Settle. While success at trial was somewhat divided, I find that the applicant wife was the more successful litigant. The major trial issues were:

(a) Retroactive and prospective child support and s.7 child expenses. Mrs. Tripodi was successful in obtaining more money at trial for child support and s.7 expenses than she was prepared to take in her Offer to Settle of April 17, 2013. Mr. Tripodi at no time offered to pay any retroactive or ongoing child support, s.7 expenses, or school financial contribution for his two children, one of which was then enrolled in university to his knowledge.

(b) Spousal support was not ordered payable by Mrs. Tripodi to her husband due to her present inability to pay. Her Offer to Settle included $10,000 to Mr. Tripodi in exchange for his comprehensive spousal support release. His April 22, 2013 Offer was on the same terms. She was more successful at trial on the spousal support issue than either of the parties’ offers.

(c) Net family property equalization. The trial judgment required Mr. Tripodi to pay $92,145.41 subject to adjustments. The gross equalization payment inclusive of all credits to be paid by Mr. Tripodi was $119,179.19. His Offer to Settle of April 22, 2013 was for $80,000. Mrs. Tripodi’s April 17, 2013 Offer to Settle was for $120,398.34 all inclusive. While neither parties made Offers more favourable to the other party on this issue than the trial result, Mrs. Tripodi’s Offer was far closer to the trial result than that of her husband.

[4] Trial success was mixed in the sense that many of the at marriage assets of the husband and contested by his wife were in fact proven at trial – but the bottom line result after a review of the offers is that Mrs. Tripodi was substantially more successful at trial than her husband.

[5] While Mr. Tripodi did make an Offer to Settle, it was unreasonable in relation to the global issues then outstanding. He at no time made any offer for any retroactive or ongoing child support for the maintenance of his children. He was aware that his daughter Stephanie was in university but did not provide either her or the applicant with any financial contribution for the university expense despite his significant capital assets and funds. It was also unreasonable, I find, for him to offer for net family property equalization almost $40,000 less than the amount ordered. His Offer was both unrealistic and unreasonable.

[6] The cost rules are meant to encourage settlement, to indemnify successful litigants for the cost of litigation and to discourage inappropriate behaviour by litigants. As I have noted, success on the net family property issue was, to some extent, mixed. This is not a case where Mrs. Tripodi is entitled to substantial or full indemnity costs. I find that she is, however, entitled to partial indemnity trial costs in addition to those already mentioned in interim orders in this proceeding.

[7] I have considered all of the rule 24(11) factors including the importance of issues, time spent, expenses paid and all other relevant matters. This was a relatively short trial of moderate complexity. At trial both counsel presented their case in a focused, well organized fashion.

[8] In fixing costs, a judge is not assessing costs as if he or she were performing the function of an assessment officer. The object of fixing costs is to avoid the delay and added costs of a full assessment. A court determines what the services devoted to the proceedings are worth. The incurring of costs and time spent by counsel in litigation is essentially the exercise of judgment. The prudence, foresight and imagination of their judgment must be considered at the time the disbursement was incurred or the work done. It is inappropriate to apply a test of hindsight to determine whether a service or charge was for an extra not reasonably necessary to advance the client’s position. The time to view the decision to commit services to the issue is before the trial.

[9] It is clear that the trial could have lasted much longer had both counsel not focused their efforts as they did. I am not persuaded that Mr. Greenstein or his law clerk engaged in any excessive billing. The explanations related to each docket item is sufficiently detailed to allow the court to properly assess the claimed items. I have a latitude under the Rule and do not consider it to be my role to second guess the time spent by counsel unless the time is manifestly unreasonable in the sense that the total time spent or disbursements incurred were clearly excessive or that a matter was the subject of an unwarranted number of legal personnel. None of those exceptions are demonstrated in this case.

[10] I have considered the principle of indemnity and the amount of costs that an unsuccessful party could reasonably expect to pay in relation to this proceeding. While judges should not attempt, in my view, to act as arbiters in the abstract of what disbursements amounts are appropriate, the disbursements in this case bear a reasonable relationship to the prevailing market rates and I hold that they are not excessive or unreasonable.

[11] In coming to the conclusion that I have, I have attempted to be fair to both sides. As I have noted, in fixing costs I am not meticulously assessing them as if I was performing the function of an assessment officer. I have, however, conducted a critical examination of the work performed by Mrs. Tripodi’s counsel.

[12] I fix partial indemnity fees, disbursements, and HST, for the reasons set out above, in the amount of $35,000. In addition, I award the respondent wife an additional $500 in costs for work for the cost fixing itself. The respondent husband shall pay all these costs forthwith.

R. MacKINNON J.

Released: September 11, 2013