ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-274 (BRT)
DATE: 2015-07-27

RE: Natasha Smith and Michael Pleau

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL:
P.D. Amey, for the Applicant
L. St. Amand, for the Respondent

THE HONOURABLE MR. JUSTICE D.J. GORDON

Supplementary Endorsement re: Costs

[1] In my reasons for decision, released May 5, 2015, I invited written submissions from counsel on the issue of costs.

[2] The parties resolved the parenting and child support issues on the eve of trial. Spousal support and constructive trust claims required determination. The applicant was successful on both claims and, hence, pursuant to Rule 24(1), Family Law Rules, she is presumptively entitled to a cost award.

[3] On her behalf, Mr. Amey seeks such an award, on a full recovery basis, in the amount of $36,377.06. Mr. St. Amand, counsel for the respondent submits this amount is excessive and, as well, the award should be on a lesser scale than full recovery. The trial required three days.

[4] Both parties served offers to settle on January 12, 2015. This was two days prior to the commencement of trial. In that brief time period, a resolution on parenting and child support issues occurred. The parties were close to a resolution on the remaining issues. Each offer reflected a compromise, no doubt due to the efforts of experienced counsel. It appears that a further settlement conference, not a trial, would have been more beneficial given the expense.

[5] The cost consequences resultant from offers to settle, as set out in Rule 18(14), only arise when the offer is served at least seven days prior to trial. Strict compliance is required. The purpose of Rule 18 is to encourage early resolution of disputes. Parties are expected to assess the case and their positions and reasonably attempt to resolve the issues. With sufficient time, I am confident experienced counsel, as here, would have guided the parties through successful negotiations. As stated above, a further settlement conference could have been arranged. While offers to settle can still assist on the eve of trial, the reality is that the parties and counsel are then focused on trial preparation.

[6] Hence, I conclude full recovery costs are not appropriate due to the failure to comply with Rule 18(14).

[7] Nevertheless, the offers to settle warrant consideration as costs are discretionary. The applicants offer was a significant compromise having regard to the ultimate determination. Partial indemnity costs throughout, at the very least, are appropriate.

[8] There is another factor that warrants consideration, namely the unreasonable conduct or litigation strategy, of the respondent. He ignored the prior cost award from the motion and used the delay of the Family Responsibility Office to, in effect, withhold child support from the applicant. Despite having the financial resources and available credit, the respondent allowed the rental property to decline in value by not performing needed repairs. He also allowed his support obligations to fall into substantial arrears. This strategy was an obvious attempt to frustrate the applicant’s legitimate claim. It was also prejudicial to the children.

[9] In result, I conclude the applicant is entitled to an enhanced cost award. She was put to unnecessary expense.

[10] Mr. St. Amand challenges the docketed time of Mr. Amey in general, saying the hours are excessive and unwarranted. No specific complaint is advanced. In my view, the argument requires disclosure of the respondent’s litigation expense for a comparative analysis. One of the criteria is to consider what an unsuccessful litigant could reasonably expect to pay. A determination cannot be made based only on a general submission.

[11] In any event, the applicant’s litigation expense is reasonable for a three day trial and the other steps, other than the motion, in this case.

[12] By my calculations, partial indemnity costs would be approximately $23,800 for fees, disbursements and HST. An enhanced award, for the above reasons, is $29,800. I so order.

Gordon, J.

Released: July 27, 2015