CITATION: Mowers v. Acland, 2015 ONSC 2171
COURT FILE NO.: FC-13-961
DATE: 20150407
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leah Mowers, Applicant
AND
Donald Bruce Acland, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Katherine L. Shadbolt, Counsel, for the Applicant
Paul Fitzgerald, Counsel, for the Respondent
HEARD: by written submissions
COSTS ENDORSEMENT
[1] The applicant seeks costs of the motion heard on February 19, 2015. She was entirely successful in the outcome and is clearly entitled to costs. The only question is the amount to be awarded. The applicant is asking for costs on a substantial indemnity basis in the amount of $23,400. The respondent proposes $12,500.
[2] The motion was brought by the respondent for an order requiring a jointly retained expert to provide a supplementary report on some matters not encompassed by the joint retainer, to reconsider his classification of a redundant asset and to advise what his opinion on value would have been had he classified that asset as working capital.
[3] Many of the respondent’s cost submissions fall under the description of re-arguing the motion. Contrary to his request, having decided the motion in favour of the applicant, I am not now going to find her conduct in opposing it as having been unreasonable litigation conduct.
[4] The applicant made three separate offers to settle the issues in the motion. In each offer she advised of ways she would agree to extend the terms of the joint retainer. The respondent did not accept her offers because he felt the proposed terms were inequitable to him. He also proposed terms for an extension of the joint retainer which were unacceptable to the applicant. Both counsel have asked me to evaluate the terms of these offers as part of my consideration of costs. I am certainly prepared to take into account the fact that offers were exchanged in an effort to resolve the motion. But I am not prepared to second guess the litigants’ opinions as to whether proposed terms for a joint retainer were fairly balanced and equitable as between them. First, I do not possess sufficient knowledge of the issues and available evidence in the case to do so. Second, the essence of a joint retainer is that its terms are acceptable to both parties. Terms of a joint retainer cannot be imposed by a court. Accordingly I do not agree that what a party might or might not have been prepared to include in a joint retainer is the type of issue to which the cost consequences of r 18(14) and (16) of the Family Law Rules can be fully applied.
[5] For these reasons I conclude that the applicant is entitled to partial indemnity costs, which I have fixed in the amount of $16,380 inclusive.
J. Mackinnon J.
Date: April 7, 2015
CITATION: Mowers v. Acland, 2015 ONSC 2171
COURT FILE NO.: FC-13-961
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Leah Mowers, Applicant
AND
Donald Bruce Acland, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Katherine L. Shadbolt, Counsel, for the Applicant
Paul Fitzgerald, Counsel, for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: April 7, 2015