ONTARIO
SUPERIOR COURT OF JUSTICE
CAYUGA COURT FILE NO.: FS-10-57
DATE: 2014/03/24
BETWEEN:
SUSAN MARIE WHITE
Deborah L. Ditchfield, for the Applicant
Applicant
- and -
RICHARD GLENN WHITE
Paul K. Steckley, for the Respondent
Respondent
The Honourable Madam Justice L.M. Walters
COSTS ENDORSEMENT
[1] At the conclusion of trial and release of my Reasons for Judgment, I invited counsel to provide me with written submissions if they were unable to agree on costs. I now have the benefit of those submissions.
[2] The applicant seeks costs of the trial on a full recovery basis in the amount of $79,545.97. The respondent seeks an order that each party be responsible for their own costs.
[3] Pursuant to s. 131 (1) of the Courts of Justice Act, the issue of costs is a matter for the court’s discretion.
[4] Rule 24(1) of the Family Law Rules sets out the factors the court should consider in exercising its discretion.
[5] In my view, on the facts of this case, taking into account those factors, the applicant was significantly more successful than the respondent and is entitled to some costs on a partial indemnity basis.
[6] I come to this conclusion for several reasons.
[7] It is true, that there was some divided success at trial, however, the two issues on which the applicant was not successful took very little trial time. Further, the applicant offered to settle these issues in accordance with the court’s decision more than one year prior to trial. The most contentious and time-consuming issue at trial, the equalization of net family properties, was determined in the applicant’s favour.
[8] Most importantly, the respondent’s failure to properly value his interest in Peninsulair unnecessarily complicated and prolonged the proceedings. My Reasons for Judgment make it very clear that I found Mr. White not only purposely gave the business valuator incomplete and inaccurate information, but even more egregiously attempted to mislead the court. Mr. White’s conduct cannot be condoned or rewarded by the court.
[9] In addition, unnecessary time was taken defending and then advancing Mr. White’s claims for spousal support, as this claim was not withdrawn until well into the respondent’s case.
[10] Throughout, I am satisfied that the applicant has acted reasonably. The same cannot be said for Mr. White.
[11] The applicant’s offer to settle dated June 5, 2012, was very similar to the ultimate decision of the court, however, I agree with Mr. Steckley’s submission that the ultimate decision of the court was not as favourable. At the same time, the slightly lower equalization payment cannot possibly justify the additional time and expense of a four day trial. It is of note that the respondent’s offer to settle was significantly different from the court’s judgment and in my view, unreasonable on the part of Mr. White.
[12] In any event, both offers had been revoked by the time of trial, although Mr. Steckley did not respond to Ms. Ditchfield’s submission that the applicant’s offer remained open for acceptance up to the commencement of trial. However, for the reasons set out above, I have determined that Mrs. White is entitled to her costs of the trial, on a partial, not full, indemnity basis.
[13] I agree with the respondent’s submissions that no costs should be awarded for the December 2012 adjournment of the trial. That adjournment would have occurred in any event due to a lack of judicial resources at the time.
[14] It is important to reiterate that when the court is fixing costs, it is not undertaking a simple mechanical exercise. Such an exercise would be inappropriate and in fact undesirable. I have no intention of going line-by-line through the applicant’s Bill of Costs.
[15] Always, when fixing costs, the objective is to fix an amount that is fair and reasonable in all the circumstances for the unsuccessful party to pay.
[16] Taking into account the factors set out in Rule 24 of the Family Law Rules, I fix the respondent’s costs at $35,000 inclusive of applicable HST and disbursements. These costs are to be paid from the respondent’s share of monies held in trust.
Walters J.
Released: March 24, 2014
CAYUGA COURT FILE NO.: FS-10-57
DATE: 2014/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUSAN MARIE WHITE
Applicant
- and -
RICHARD GLENN WHITE
Respondent
COSTS ENDORSEMENT
Walters J.
Released: March 24, 2014