ONTARIO
SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:**180-2012
DATE: 2014-01-08
BETWEEN:
Timothy Robert Scott
Applicant
– and –
Shannon Diane Scott
Respondent
Mr. Walter Drescher – Counsel for the Applicant
Ian Gerald T. Smits – Counsel for the Respondent
HEARD: November 21 and 22, 2013
judgment on costs
THE HONOURABLE MR. JUSTICE H. ARRELL
[1] This matter was heard by me over two days. The main issue was the validity of the separation agreement, and if upheld, what each party might owe the other under its various terms. I found in favour of Mr. Scott as to the validity of the separation agreement and went on to rule on the other monetary issues as per the request of counsel.
[2] Counsel have been unable to agree on costs and have provided me with their written submissions.
[3] The parties separated and entered into a comprehensive separation agreement with the advice of counsel. The respondent argued she was forced to sign the agreement under duress. The applicant argued the agreement was perfectly valid and should be upheld.
[4] I found in favour of the applicant on the validity of the separation agreement.
[5] Neither party had abided by the terms of the separation agreement and at the request of counsel I made rulings on who owed what under the agreement’s various provisions. To the credit of the parties they agreed on a number of issues part way through the trial.
[6] The respondent argues that as a number of items were settled during the trial and because there was some divided success that there should be no order as to costs.
[7] The applicant argues he was successful on the main issue of the validity of the separation agreement and on the majority of other issues. As such, he argues he should be awarded substantial indemnity costs.
[8] Each party filed Offers to Settle. The Applicant filed two while the Respondent filed one. None of the Offers attract cost consequences in my view, as my judgment, in totality, differs significantly from them.
[9] There is no doubt that the applicant was successful on the main issue being the validity of the separation agreement. There was mixed success on the collateral issues as to what each owed under the agreement but overall the Applicant was more successful than the Respondent on those issues.
[10] The Applicant is entitled to his costs but on a partial indemnity scale.
[11] I have considered the factors listed under R. 24(11) of The Family Law Rules. This was a straight forward, uncomplicated matter. Neither party, in my view, appears to have been particularly reasonable in attempting to resolve such a relatively simple matter. I accept that the issue of the separation agreement was important to both, but it was also resolvable. Although I make no specific comments on the hourly rates and time spent that the Applicants counsel is suggesting, I have considered proportionality and what the respondent may have expected to pay had she lost. Regrettably counsel for the respondent did not provide his bill of costs to assist me as to what he felt would be reasonable.
[12] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[13] I have concluded that a fair amount of costs payable by the respondent to the applicant, after considering all of the circumstances, is $8,000.00 inclusive of taxes and disbursements. The costs are payable on or before April 30th, 2014.
Arrell, J.
Released: January 8, 2014
COURT FILE NO.:180-2012
DATE: 2014-01-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Timothy Robert Scott
Applicant
– and –
Shannon Diane Scott
Respondent
REASONS FOR JUDGMENT
ARREL J.
HAS:mw
Released: January 8, 2014