Rebiere v. Rebiere, 2015 ONSC 2129
COURT FILE NO.: 123/13
DATE: 20150401
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Darlene Helen Rebiere, Applicant
AND
Eric Bertrand Rebiere, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Leslie C. Kendall, for the Applicant
Lucienne MacLauchlan, for the Respondent
HEARD: In Chambers (Written Submissions)
COSTS ENDORSEMENT
[1] Following a six day trial I delivered my Reasons for Judgment found at 2015 ONSC 1324. I have now received written submissions on costs.
Positions
[2] The wife is seeking $76,590.31 in costs, being 60 percent of her full costs of $123,877.43. The husband seeks his full recovery costs, unreduced, of $71,299.12. All amounts include disbursements and H.S.T.
[3] The wife asks for an order that any costs awarded to her be paid from the husband’s share of the net proceeds from the sale of the matrimonial home or that, in the alternative, some or all of the costs be enforced by the Family Responsibility Office (“FRO”) as spousal support. The husband asks for a similar order with respect to enforcement by FRO of any costs awarded to him.
Law
[4] Pursuant to subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are discretionary. I am to assess the costs guided by Rule 24 of the Family Court Rules, O. Reg. 114/99. There is a presumption that the successful party is entitled to costs (subrule 24(1)). If success is divided, the court may apportion costs (subrule 24(6)). Factors such as offers to settle, reasonableness (including a consideration of all offers to settle), preparedness, and bad faith may also effect entitlement: subrules 24(4), (7), (8), and 18(14).
[5] The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances (Murray v. Murray, 2005 46626 (ON CA), 79 O.R. (3d) 147 (C.A.)). This includes considering the reasonable expectations of the losing litigant regarding costs (Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40; Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.)). It also includes a consideration of the impact that the cost award will have on the party ordered to pay (see Murray above).
[6] As costs are to be decided promptly after each step in the case (subrule 24(10)), they are not awarded for preliminary steps (conferences and motions) that have been addressed by another judicial officer where the costs have not been reserved: see Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10. This does not mean, however, that the costs order should only relate to matters concerning the hearing. As clarified in Houston v. Houston, 2012 ONSC 233, 12 R.F.L. (7th) 115 (Div. Ct.), steps not requiring any form of judicial intervention, such as the preparation of pleadings, are not covered by this rule.
Analysis
Success
[7] As noted in the judgment, one of the two main issues was property. The parties were equally successful, or unsuccessful, on the valuation of disputed assets. The wife was unsuccessful in her claim with respect to an adjustment of her share of the RCMP pension. The husband was unsuccessful regarding his Family Law Act section 5(6) unequal division claim. As a result, the equalization payment by the husband to the wife was rather small, $475.72, which was closer to the husband’s position (he sought $5,856.93) than to the wife’s position (she sought $31,734.98). The husband requested a transfer of the home to him and occupation rent from the wife, and was unsuccessful on both accounts. In my view success was roughly equal on the property issues.
[8] Regarding the second main issue of spousal support, the husband disputed entitlement, and the wife was successful on both a compensatory and non-compensatory basis. That also made her successful on the included and assumed issue of retroactive support, which did not take up much time. The wife was mostly successful on the level of her own income to be used for the spousal support calculations. The result was mixed regarding the Veterans Affairs amounts to be included in the husband’s income, although the biggest issue in the trial was the Attendance Allowance on which the husband was successful. The Wife was not successful in her request with respect to the health benefits plan, but was successful with respect to life insurance. In my view success on the spousal support issues was divided as well.
Offers
[9] The requirements for an Offer to Settle that has cost consequences are set out in Rule 18. To trigger full recovery costs a party must do as well or better than all the terms of any offer (Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.) at para. 14). The parties concede that no offers meet that test. Further, none were so close to my Judgment that I am inclined to consider them when assessing reasonableness in these deliberations, pursuant to subrules 18(16) and 24(5).
Bad Faith
[10] Neither party alleged bad faith on the part of the other as a consideration in assessing costs.
Factors in Costs: Subrule 24(11)
Importance, Complexity or Difficulty of the Issues
[11] A few of the issues in this case were important and complex, such as how to treat the Veterans Affairs amounts, but most were not.
Reasonableness
[12] The husband’s position on the dog Missy was unreasonable, in that he was seeking possession of the animal despite a contrary interim decision and clear evidence that the wife was the legal owner. He dropped this claim, but not until part way through the trial. I am also of the view that the husband’s claim for a variation of the equalization payment based on unconscionability was unreasonable. Even taking his evidence at its best and with his own expert testifying, he had to have been aware before the trial started that he could not make out his position. Significant trial time was wasted on this issue when it was, to put it bluntly, patently ridiculous and incapable of proof. It also placed a significant pre-trial documentary production burden on the wife. In a similar vein, it was also unreasonable for the husband put the wife’s credibility in issue over the $1,500 electronic bank transfer. His position was based on speculation with no direct evidence of wrongdoing.
Applicant’s Lawyer’s Rates, Time Properly Spent, Expenses Incurred (Subrules 24(11)(c), (d), and (e))
[13] The husband’s lawyer challenged the rates charged by the wife’s counsel as being generally too high. She compared them to her own lower hourly rate, although she acknowledged that hers was “well below market”. Her bill to the husband was $59,601.47. When fees to previous counsel are added in but fees for the motion and conferences are removed, that still leaves the husband’s legal costs at roughly half those of the wife. The husband’s counsel therefore argued proportionality, indicating that the wife’s Bill of Costs in total was unreasonable. In my view, little turns on this. I have decided not to award costs to either party for the entire proceeding given the divided success overall.
[14] The time spent was not entirely a reflection of the complexity or significance of the case. It was attributable in part to the husband taking unreasonable positions on several issues that the wife had no choice but to address in response. While the trial was not unduly long, it was longer than it needed to be as a result. For her part, the time the wife spent dealing with the Attendance Allowance was also significant, but it was not unreasonable. Even though she was unsuccessful, that issue needed to be determined, and was one of the few complex aspects of this case.
Any Other Relevant Matter
[15] The husband argued that he cannot afford to pay any portion of the wife’s costs. However, given her finances the wife is in no better position to absorb them. I do not find that the relative financial position of the parties plays a large role in my decision.
Summary
[16] The fundamental purposes of the costs rules, as restated in Serra v. Serra at para. 8, are: “(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behavior by litigants.” Success was for the most part divided. No settlement offers impact my decision. However, as noted in paragraph 12 above, the husband pursued several issues through the litigation process that had no reasonable prospect of success. That behaviour needs to be discouraged. In my view the wife is entitled to some measure of compensation approaching full recovery in relation to those issues, and I find it fair and reasonable that she receive a significant portion of the associated costs.
Decision
[17] Having regard to all the relevant factors and considerations outlined above, the husband shall pay the wife $20,000 for her costs, inclusive of HST and disbursements. As this award is founded on property issues, I decline to order that it is enforceable by FRO as spousal support. I leave it to the parties to deal with enforcement or to agree on payment terms.
Mr. Justice Timothy Minnema
Date: April 1, 2015
CITATION: Rebiere v. Rebiere, 2015 ONSC 2129
COURT FILE NO.: 123/13
DATE: 20150401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Darlene Helen Rebiere
Applicant
– and –
Eric Bertrand Rebiere
Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Lesley C. Kendall, for the Applicant
Lucienne MacLauchlan, for the Respondent
COSTS ENDORSEMENT
Mr. Justice Timothy Minnema
Released: April 1, 2015