Superior Court of Justice - Ontario

COURT FILE NO.: FS – 12 - 378309
DATE: 20131118

RE: Karen Isabel Arbetman Cohen, Applicant

AND:

Lorne Frank Cohen, Respondent

BEFORE: Kiteley J.

COUNSEL:
Dani Z. Frodis, for the Applicant

Steven M. Bookman, for the Respondent

ENDORSEMENT AS TO COSTS ARISING FROM
MOTIONS HEARD APRIL 25, 2013

[1] On June 11, 2013 I released reasons for decision[^1] arising from motions heard April 25, 2013. I directed counsel to make written submissions as to costs. In written submissions dated June 19th, counsel for the Applicant asked for costs in the amount of $9500. In written submissions dated June 28, 2013, counsel for the Respondent asked for costs in the amount of $14,441.22.

[2] In their respective submissions, counsel compared and contrasted the offers to settle that each had made as against the outcome of the motions. Each took the position that his client had been substantially successful, had acted reasonably, and had met or exceeded an offer to settle.

[3] Rule 24 establishes the presumption that a successful party is entitled to costs. Success was divided and accordingly, that presumption applies to both of them. Neither party acted unreasonably so that is not a factor in awarding costs. The issues were important although not markedly complex. The bills of costs reflect similar services having been rendered by the senior counsel and junior counsel although the bill of costs of the Respondent includes a photocopy disbursement of $922.50 for 1845 copies that is disproportionate to the volume of material on the motion.

[4] Given those neutral factors, there are three factors that have the greatest impact on costs.

[5] The first is that this was a motion by the Respondent for an order for sale of the matrimonial home. I agree with the submission that that was a reasonable request given that the Applicant and one child were the principal occupants of the five bedroom home that was valued in the range of $600,000 to $985,000 with associated liabilities of approximately $240,000. The Respondent on the other hand was living in a comparatively very modest apartment because he could not afford to do otherwise and he needed to access the considerable equity in the home. The challenge was that this case triggered s. 10.1 of the Family Law Act.

[6] As I held in paragraph 26, neither the Applicant nor the Respondent had been successful on the issue that attracted the most risk and the most conflict and I observed that they were caught up in the changes that ensued as a result of the introduction of s. 10.1(4) of the Family Law Act.

[7] The second factor is that when the motion was launched, the monthly payments on the mortgage (which had an accelerated principal repayment schedule) and the line of credit were onerous and it was for that reason that the Applicant sought an order that the Respondent be ordered to be responsible for the line of credit. In his responding affidavit sworn April 4, 2013, the Respondent indicated that the mortgage would mature May 1st and that new financing had to be secured. As he pointed out, it was open to the Applicant to make inquiries to determine the terms of renewal. Having not made those inquiries, she said she learned only in his April 25th affidavit that the repayment terms had been altered significantly. I agree that she could have made those inquiries. However, it was clear that the Respondent was negotiating with the financial institution and he was addressing an issue that had contributed to conflict between them. It was within his power to have included her in the discussions which would likely have reduced that conflict earlier than the day on which the motion was heard.

[8] The third factor is the dates of the offers to settle. The Applicant’s offer to settle the issues raised in her motion was dated April 1, 2013 and included a term that each party would bear his/her own costs. The Respondent’s offer to settle was dated April 23, 2013 which was the Tuesday before the motions were heard. It dealt with all issues in his motion and in her motion. It made no reference to costs. Rule 18(14) of the Family Law Rules establishes the costs consequences of failure to accept an offer that is made at least one day before the motion date. In that context, the offer to settle dated two days before the motion was heard was relevant. However, the reality is that with the complexities involved in the motions, it was reasonable for the recipient of an offer to settle, particularly one with no stated cost consequences, to not have sufficient time to make an informed decision whether to accept or reject the offer and contemplate whether costs might be recovered if the offer had been accepted.

[9] The first factor leads me to the conclusion that each should bear their own costs. The second and third factors lead me to the conclusion that the Respondent should make a modest contribution to the costs incurred by the Applicant.

ORDER TO GO AS FOLLOWS:

[10] The Respondent shall pay to the Applicant costs of the motions fixed in the amount of $3000 payable by December 18, 2013

Kiteley J.

Date: November , 2013

[^1]: Cohen v. Cohen, 2013 ONSC 4000