SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 21/12
DATE: 20150915
RE: Steven Peterson, Applicant
AND:
Catherine Borg, Respondent
BEFORE: Gunsolus, J.
COUNSEL:
Counsel, J. Gleiberman, for the Applicant
Counsel, C. De Facendis, for the Respondent
HEARD: By written submissions
ENDORSEMENT on costs
[1] This endorsement on costs relates to the applicant’s contempt motion brought against the respondent in relation to a settlement entered into by the parties on the 20th of October 2014.
[2] By way of those Minutes of Settlement, the applicant, Steven Peterson, was to pay the respondent the sum of $55,000.00 in full and final satisfaction of all her claims in relation to equalization, her interest in the matrimonial home and spousal support. In exchange, the respondent was to transfer her interest in the matrimonial home to the applicant. The applicant obtained possession of the property, allegedly, by breaking into it. He thereby, in effect, took possession of the property, but did not pay to the respondent the funds as contemplated by the Minutes of Settlement dated the 20th of October 2014.
[3] The applicant’s contempt motion alleged that the respondent failed to provide a transfer of title as required to the Minutes of Settlement. He further claimed damages in the amount of $70,954.80 and an order directing the removal from title of Legal Aid Liens.
[4] Based upon my views and recommendations, the issue in relation to the Legal Aid Liens was not pursued (they were to be paid from the respondent’s settlement funds, in any event). The parties were then able to arrive at Minutes of Settlement in order to effect the completion of the transfer of the matrimonial home and the appropriate exchange of funds. This did, in fact, occur on the 31st day of August 2015. In the result, the respondent agreed to pay to the applicant $2,500.00 in relation to garbage and other debris that she left behind in the matrimonial home in order to offset the costs that the respondent incurred in order to remove this garbage and debris. The parties were unable to agree on costs.
[5] Counsel for the respondent, Ms. Borg, seeks costs in the amount of $25,117.30, including disbursements and HST. Counsel for the applicant, Mr. Peterson, seeks costs in the amount of $11,327.35, inclusive of disbursements and HST.
[6] Section 131 of the Courts of Justice Act provides that an award of costs is a matter in the discretion of the Court.
[7] Costs are intended to indemnify successful litigants for the costs of litigation; encourage settlements and discourage and sanction inappropriate behaviour by litigants[1].
[8] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. If success is divided, the Court may apportion costs. Rule 24(8) of the Family Law Rules provides that if a party has acted in bad faith, the Court shall decide costs on a full recovery basis.
[9] The factors which must be considered in ordering costs are listed in Rule 24(11) and, in addition, the Court must consider the overriding principles of reasonableness and the fundamental objective of preserving access to justice. The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case rather than an amount fixed by the actual costs incurred by the successful party. The expectations of the parties concerning the amount of costs is also a relevant consideration[2]. Finally, the Court must address the issue of proportionality, given litigant’s means and what might reasonably have been expected on a motion of this nature[3].
[10] It was clear from both the materials and the submissions of counsel that this has been a particularly acrimonious proceeding. As a result of my review of the materials and my suggestions to counsel, the parties were able to resolve the applicant’s contempt motion and the respondent’s cross-motion. It was not necessary for the Court to make findings in relation to the position of each party. Rather, the Court was able to persuade the parties to resolve their differences, enter into further Minutes of Settlement and ultimately complete their intended transaction.
[11] The applicant’s motion should not have been brought by way of contempt, but rather by way of a request for the Court to enforce the Minutes of Settlement entered into by the parties in 2014. Contempt should have been the last resort[4]. It was necessary for the respondent to address the applicant’s claim for contempt and seek to have the terms of the Minutes of Settlement enforced by this court. It could not be said that the applicant succeeded with this motion except in relation to the $2,500.00 which he received in relation to garbage and debris allegedly left behind by the respondent in the matrimonial home. On the other hand, the respondent succeeded in having the terms of the Minutes of Settlement enforced and completed and the contempt motion otherwise dismissed – albeit on consent.
[12] Having taken into consideration the acrimonious nature of this litigation; the law as it applies to costs; and how counsel might have otherwise sought to resolve this matter, I order that the applicant pay to the respondent her costs in the amount of $5,500.00 plus disbursements of $457.70 plus HST on both. I believe this amount appropriate reflects the factors set out in Rule 24 and the principle of proportionality and what might reasonably have been expected on a motion of this nature. I note there were no offers to settle presented by either party for the Court to consider. An order shall issue, accordingly.
D. S. Gunsolus, J.
Date: September 15, 2015
[1] Fong et al v. Chan et al https://www.canlii.org/en/on/onca/doc/1999/1999canlii19943/1999canlii19943.html 1999 2052 (ON CA), 1999 46 OR 3d 330 ONCA
[2] Boucher v. Publicate Accountants Council for the Province of Ontario 2004 71 3d 291 ONCA
[3] Principato v. Principato https://www.minicounsel.ca/scj/2013/420 2013 ONSC 420
[4] Hefkey v. Hefkey https://www.canlii.org/en/on/onca/doc/2013/2013onca44/2013onca44.html 2013 ONCA 44