ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: McMillen v. McMillen, 2015 ONSC 725
COURT FILE NO.: 97-FA-6021-01
DATE: 20150130
B E T W E E N:
PAUL GEOFFREY McMILLEN
Simon Schneiderman, for the Applicant,
Applicant
- and -
ELIZABETH McMILLEN (a.k.a. ELISHEVA JONASHE)
Mark Wainberg, for the Respondent
Respondent
Esther Lenkinski for Maritza McMillen on the issue of costs of a disclosure motion against Maritza McMillen
HEARD: in writing
MESBUR J
ADDENDUM TO DECISION ON COSTS
[1] In my costs decision released January 28, 2015 I commented that I had not received reply submissions from applicant’s counsel, even though I had provided an opportunity for them to be delivered. Unbeknownst to me, applicant’s counsel had in fact delivered reply submissions to the Court office within the timetable I had set; unfortunately they did not find their way to me before I released my decision.
[2] I have now reviewed these reply submissions, with a view to seeing whether they have any impact on my original costs decision. They do not.
[3] Applicant’s counsel raises three issues in his reply submissions. The first relates to the respondent’s allegations of bad faith. Since I found none, this submission does not affect my decision.
[4] The second relates to what he suggests are ambiguities in the respondent’s two offers of January 20 and October 4, 2014. I do not find them ambiguous. This submission does not alter my ultimate costs decision.
[5] The third relates to the respondent’s costs outline. This aspect has several components.
[6] First, the applicant suggests the sums requested are disproportionate. I came to the same conclusion, and significantly reduced the time claimed by the respondent’s counsel, particularly in relation to the trial, and awarded no costs for other services claimed.
[7] Second, the applicant suggests the rate respondent’s counsel claimed for partial recovery costs was too high. He asserted it should be about 60% to 70% of the lawyer’s actual billing rate. Although I initially indicated the $300 per hour was a reasonable partial indemnity rate, I reduced it even more by discounting the lawyer’s actual billing rate to slightly less than 75% of his actual billing rate for those services for which I awarded partial indemnity costs. I would make no further adjustment on this account. I come to this conclusion in part because of respondent’s counsel’s relatively modest actual billing rate, given his years of experience, particularly compared with a significantly higher rate applicant’s counsel charges with fewer years of experience than respondent’s counsel.
[8] Third, the applicant suggests there should be no costs award for the costs submissions themselves. I came to the same conclusion, and awarded none.
[9] Fourth, the applicant suggests the respondent’s supporting dockets and disbursements are improper. I allowed nothing specifically for disbursements, and disallowed a large proportion of the time claimed. I would make no further adjustment on this account.
[10] Fifth, the applicant takes the position the costs award should not be enforced as support, since there is no history of difficulty in enforcing support. I made no order for the costs to be enforced as support. This submission therefore has no effect on my ruling.
[11] Sixth, the applicant suggests his limited resources should mitigate against any costs award. The applicant had choices. He chose to commence the motion to change. He knew or should have known he bore the evidentiary burden. He was given a very reasonable settlement offer he could have accepted and avoided the risk of a trial. He knew or ought to have known the risk he faced regarding paying costs. He took the risk, and should not raise impecuniosity as a defence, particularly when his own counsel claimed $75,000 in partial indemnity costs against the respondent who has only a modest disability pension and spousal support, and no assets of any kind. This submission has no effect on my decision.
[12] Last, the applicant suggests there is no basis in law or fact for joint and several cost liability of June 26, 2014 motion. I made no such award. Therefore this submission does not affect my costs decision.
[13] Accordingly, having reviewed the applicant’s reply costs submissions, I make no alteration to my costs decision of January 28, 2014, and confirm it.
MESBUR J
Released: 20150130