COURT FILE NO.: FC-12-50
DATE: 20151112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: George Emmanuel Rothschild, Applicant
AND
Mary Sardelis, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Thomas R. Hunter, Counsel, for the Applicant
Mary Sardelis, Self-represented
HEARD: By written submissions
COSTS ENDORSEMENT
[1] The trial of this action took place in half day increments, over 7 days. The major issue was spousal support. My award was for retroactive support of $36,900 after credit was given for amounts paid and for periodic support from July 1, 2015 to and including June 1, 2016 in the sum of $2,250 per month. I made no order for ongoing support after that date. Nor did I terminate the respondent’s potential entitlement to support after that date.
[2] Both parties are now asking for costs. The applicant seeks $85,161. The respondent seeks $95,715.
[3] There is no doubt but that the applicant was the more successful party at trial having regard to the positions taken by the parties at trial. The applicant‘s position was that the net after credit lump sum for retroactive support was $19,865; whereas the respondent said it was $152,226. The applicant proposed no spousal support should be paid from July 2015 forward. He asked the court to declare that the respondent had no further entitlement to spousal support. The respondent sought $4,025 per month from that date forward on an indefinite basis. In this regard she asked the court to make a specific ruling that she was entitled to “double dip” into the applicant’s already divided pension for the purpose of determining his ongoing income for spousal support purposes. That argument was not successful.
[4] The respondent can be described as having some success at trial in that spousal support was continued for one more year, and her entitlement to spousal support was not terminated.
[5] Neither the outcome of trial nor any offer made by either party entitles either one of them to full recovery costs. In my view the applicant is entitled to an award of costs payable by the respondent. These are my reasons.
[6] The offer made by the applicant in February 2015 was to receive a lump sum of $12,003, to pay periodic payments for 2014 of $28,644, plus ongoing support of $2,172 per month, commencing January 2015, on an indefinite basis. This offer did not contemplate the intervening fact of his retirement. After that decision was made the applicant revised his offer to increase the support slightly to $2,189 per month and to terminate spousal support forever as of July 1, 2015. By this time he had decided to retire at the end of June 2015.
[7] The parties had also made previous efforts to settle, culminating in a draft separation agreement being prepared by the respondent’s then counsel. I accept the applicant’s submission that the agreement was not completed by reason of the respondent terminating her counsel’s retainer and declining to address drafting changes proposed by the applicant’s counsel. This is confirmed by an email exchange between the parties. While the respondent states in her costs submissions that she signed the amended agreement on August 27, 2013, that document was not witnessed nor apparently delivered. Nor do I believe the version she signed to have been an amended version; it does not appear to have addressed the issues raised by the applicant’s counsel.
[8] By November 2014 the respondent made an offer which sought $3,750 per month support as compared to $2,212 in the draft separation agreement; plus $117,000 in arrears of support, compared to the figure of $15,484 set out in the draft agreement. In fact, the terms of the draft separation agreement are quite similar to the trial outcome. The spousal support was $2,212 per month, compared to my award of $2,250 and the arrears, if brought forward to June 30, 2015, with the credit as I found it to be deducted, would have been $48,052 before reduction to reflect the reality that this would be paid by a lump sum without income tax consequences. My lump sum award was for $36,900.
[9] The parties had resolved their property issues by consent order made on November 28, 2014. The remaining outstanding issue of spousal support failed to settle because the respondent continued to insist that the amount payable should far exceed fifty percent of NDI. It is clear from the correspondence between counsel that the support set out in the draft separation agreement was calculated at 47 % of NDI. The respondent’s request for $45,000 per year was not supportable.
[10] This offer made in November 2014 was the only offer made by the respondent to which either party referred me in their costs submissions.
[11] I also find that the respondent knew that her claim far exceeded the recommended ranges described by the Spousal Support Advisory Guidelines. She was from time to time represented by three very experienced family law counsel. Her own written communications refer to sophisticated legal concepts, including NDI. Accounts from her lawyer at the end of 2014 refer to preparation of Divorcemate calculations. She chose not to present a SSAG calculation at trial, instead attempting to call her brother as an expert witness to provide the court with a different concept of income and a different approach to equalization of NDI that would justify the amount of spousal support she wanted. Contrary to her submission in her cost brief, my mid trial ruling on that issue was not in her favour.
[12] Both parties made submissions as to the reasons why their contemplated arbitration did not proceed, and sought costs incurred in that regard. I have decided not to address those issues. I am not persuaded to include the costs of a failed arbitration as part of the costs of this court application.
[13] In support of her claim for costs the respondent submits that the property settlement that was agreed to as an equalization of net family property was in fact unequal in the applicant’s favour. This was not an issue at trial. She makes many other allegations such as intentional infliction of emotional and financial harm by the applicant and misconduct by his counsel which are not borne out by the trial evidence.
[14] Accordingly, the applicant was overall the successful party at trial; however he was partially, not fully successful. The respondent failed to make reasonable offers to settle, rather maintained an unreasonably high demand for spousal support throughout. This was in my view the key reason the trial was required.
[15] The respondent has the ability to pay costs. She cannot claim the applicant’s costs are unreasonable having regard to the amount of her own claim and the accounts she has submitted from the three counsel she retained during this process. The applicant’s costs are fixed on a partial recovery basis at $45,000, inclusive of fees, disbursements and applicable HST.
J. Mackinnon J.
Date: November 12, 2015
COURT FILE NO.: FC-12-50
DATE: 20151112
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: George Emmanuel Rothschild, Applicant
AND
Mary Sardelis, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Thomas R. Hunter, Counsel, for the Applicant
Mary Sardelis, Self-represented
COSTS ENDORSEMENT
J. Mackinnon J.
Released: November 12, 2015