Friesen-Stowe v. Stowe, 2015 ONSC 2203

1This is a costs endorsement following Margaret Friesen-Stowe’s successful defence of a motion to change an existing spousal support order.

2Ms. Friesen-Stowe incurred legal costs of about $31,000 responding to the motion. She served an offer to settle which was more favourable to Mr. Stowe than the outcome of the motion. She claims $22,000 in legal costs from Mr. Stowe.

3Mr. Stowe says that Ms. Friesen-Stowe’s lack of timely disclosure of changes in her education plans ought to attract a costs penalty. Also he says that the tax deductibility of her costs ought to be a consideration. He notes that her lawyer was retained a couple of months before the hearing date and therefore the costs claim should reflect a lower amount for legal services. He suggests an award of $12,000 would be appropriate. He arrives at this figure by using a starting point suggested by the other side of $17,000 (including a premium for the successful offer to settle) less a reduction of about $8,000 for the factors that he has identified as warranting a downward adjustment.

4The factors governing the determination of costs are set out in the Family Law Rules. Of particular relevance here is the presence of an offer to settle that was more favourable to Mr. Stowe than the outcome of the motion.

5I do not think a reduction for tax deductibility is appropriate on the facts of this case. This practice is not well established or routinely followed. Also, here the successful party’s income is not so great that I am convinced that she would enjoy as high a level of benefit from the tax deductibility of her legal costs as suggested by Mr. Stedman.

6I agree with the suggestion that Ms. Friesen-Stowe ought to have been more forthright about her changing education plans and have taken this consideration into account.

7Also, I am mindful of the fact that it was Mr. Stowe’s decision to seek to reduce his support obligations. Ms. Friesen-Stowe was forced to respond.

8Following the hearing and before the decision was released both lawyers were asked for an indication of his and her solicitor and client legal costs. Mr. Stedman indicated that his costs were about $29,000 before HST. Ms. Summers indicated that her costs were similar. One side’s costs are not substantially disproportionate in relation to the costs incurred by the opposing party as is sometimes the case with costs claims.

9In the result, I have determined that a costs award of $17,500 (inclusive of disbursements) plus HST in favour of Ms. Friesen-Stowe would be appropriate. This sum is payable by Mr. Stowe within 30 days.