ONTARIO

SUPERIOR COURT OF JUSTICE

WELLAND COURT FILE NO.: 119/10

DATE: 2013/02/11

BETWEEN:

SUSAN MARIE NEUFELD

Jeffrey Richey, for the Applicant

Applicant

• and -

HENRY NEUFELD

Paul A. MacLeod, for the Respondent

Respondent

The Honourable Mr. Justice D.J. Taliano

COSTS ENDORSEMENT #2

1This is the second time that the issue of costs has needed to be addressed in this litigation. A brief history will explain why.

2This case was called for trial on July 26, 2011. The parties had settled several issues on the morning of trial but were unable to resolve four issues which were referred to the court for resolution. Reasons for judgment were delivered on November 24, 2011, resolving those four issues and awarding the respondent a net equalization payment of $89,502.95.

3Following written submissions, a costs order was made in an endorsement dated March 9, 2012, awarding the respondent costs fixed in the sum of $17,000 plus disbursements of $836.24 plus applicable GST/HST. A significant reason for the elevated costs award was the fact that the respondent had presented an offer to settle prior to trial in an amount less than the amount found due by the judgment. Since the offer did not comply with Rule 18 of the Family Law Rules, a substantial indemnity award was not awarded.

4Subsequent to the trial, it was discovered that the respondent’s net family property statement (“NFP”) contained a serious error that neither counsel detected prior to or during the trial. The respondent had incorrectly claimed a date of marriage value of his pension to be $226,216. Since the contents of the respondent’s NFP were not challenged at trial, the court was also unaware of the error.

5Following judgment, the applicant filed a notice of appeal initially seeking an order awarding her an equalization payment in the sum of $18,706. In a supplementary notice of appeal, she requested an equalization payment of $3,875.62.

6At the appellate level, the respondent requested an order that the applicant’s appeal be dismissed and that costs of the appeal be ordered against her on a substantial indemnity basis. In the alternative, the respondent sought an equalization payment of $38,189.42.

7On the date the matter was scheduled to be heard by the Court of Appeal, the parties settled all issues on the basis that the applicant owed the respondent an equalization payment of $38,189.47. By paragraph 2 of the consent, costs of the trial and of the appeal were to be addressed by myself.

8Written costs submissions were filed by both the applicant and the respondent.

9The applicant takes the position that no costs should be awarded for the trial for the following reasons. On the morning of the trial, the parties were able to resolve several issues and only required a trial to resolve four issues. Although only one of these issues was decided in favour of the applicant, the applicant received the benefit of a gratuitous offer by the respondent to agree to a review of his pension valuation should he retire earlier than at age 65.

10With respect to the appeal, counsel for the applicant has filed a Costs Outline seeking partial indemnity costs of $23,286.25.

11The position of the respondent is that the trial costs previously ordered should be confirmed. In addition, he seeks costs of the appeal of $20,811.20 inclusive.

DECISION

The Trial Costs:

12It is clear that the same costs order that followed an award of $89,502.95 would not be appropriate to an award of $38,189.42 since a costs order must be proportional to the issues, the amounts in question and the outcome of the case.

13In addition, the offers to settle that the respondent served prior to trial were well in excess of this settlement amount and therefore the offers would no longer justify an elevated costs order.

14Finally, it must be observed that the respondent’s inclusion of such an erroneous figure in his sworn affidavit is regrettable and must be taken into account. It is a litigant’s responsibility to present an accurate picture of his financial position and if the respondent had honoured his obligation, the trial and the appeal might have been avoided. All of these factors would suggest a significant reduction in the respondent’s entitlement to trial costs.

Costs of the Appeal:

15With respect to the appeal, the applicant asserted an equalization payment in her favour of $3,875 in spite of her ultimate agreement to pay the respondent an equalization payment of $38,189.42. Accordingly, she was only partially successful on her appeal in reducing her indebtedness.

16Although the respondent takes the position that the appeal was unnecessary and that a simple telephone call would have resolved the matter, the respondent’s pleadings in the Court of Appeal claimed a dismissal of the appeal with substantial indemnity costs. The respondent asserted in his pleading that “the trial judge correctly concluded from the facts that the Respondent was entitled to a date of marriage value deduction of $226,216.00 for his pension”. In fact, this figure was not discussed at trial and the court was never asked to adjudicate this subject. It is true that the respondent also proposed as an alternative, the lesser figure for the equalization payment but the initial claim was never abandoned.

17It was only on the morning that the appeal was scheduled to be heard that the respondent proposed the reduced equalization payment on the basis that the $226,216 figure was in error. By that time, the expense of perfecting the appeal and preparing to present it had already been incurred. Under these circumstances, the applicant is entitled to some costs for her appeal since she was successful in substantially reducing the respondent’s entitlement. Although her counsel’s proposed Bill of Costs slightly exceeds $20,000, it is clear that this amount is disproportionate to the success achieved. In addition, the amount she might be entitled to in costs would have to take into account that at the appeal level, she was still asserting that the respondent owed her an equalization payment.

18After considering all of these factors, I have concluded that the respondent is entitled to a comparable amount for the costs of the trial as the applicant is entitled to for the appeal. That being the case, their off-setting costs claims dictate that each party should pay their own costs and it is so ordered.

19Accordingly, the original order concerning costs is hereby rescinded. There shall be no further order for costs in this matter.

Taliano J.