Mason v. Mason, 2015 ONSC 731
COURT FILE NO.: 17980/12
DATE: 20150203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LISE MASON
David Lanthier, for the Applicant
Applicant
- and -
MICHAEL MASON
No one for the Respondent
Respondent
HEARD: in chambers January 22, 2015
D E C I S I O N ON COSTS
WILCOX, J.
[1] The parties entered into Minutes of Settlement dated March 17, 2014 in which they settled the issues arising from their marital separation, apart from spousal support. The minutes indicated that the issues of the Applicant’s claim for spousal support and costs relative to that claim remained outstanding.
[2] The trial had been scheduled to commence on March 17, 2014. However, that day was used to draft the Minutes of Settlement.
[3] The spousal support issue went to trial commencing the next day and judgment was subsequently rendered. Regarding costs, it stated that each side should bear its own costs.
[4] In dealing with costs expeditiously, the court was not made aware of any outstanding offer to settle, and inadvertently omitted to inquire about any.
[5] Subsequently, the Applicant brought a motion on notice seeking an amendment to the trial decision to award costs to the Applicant on the basis that there had been an offer to settle, and counsel for the Respondent moved to get off the record.
[6] As the judgment has not been issued and entered, I retain the discretion to change it. (See, for example, 1711811 Ontario Limited v. Buckley Insurance Brokers Ltd. 2014 ONCA 125, 2014 O.N.C.A. 125 at paragraph 64., and Family Law Rule 25(19)(b)).
[7] The motions resulted in my endorsement of September 23, 2014. The Respondent’s counsel was removed as counsel of record. Mr. Mongenais, who anticipated becoming the Respondent’s new counsel of record, participated. It was agreed that the Applicant’s motion would be adjourned to allow the Applicant to serve and file additional materials in support of the request for costs, and for the Respondent to respond. The Applicant’s submissions as to costs were received on November 24, 2014. Mr. Mongenais advised by letter of December 11, 2014 that the Respondent had retained him for related matters and was considering retaining him to deal with costs, but had yet to do so. He invited the court to set a deadline for the Respondent’s costs submissions. Consequently, January 19, 2015 was set as the deadline.
[8] A further letter was received, from Radnoff Law Offices, in which Mr. Radnoff advised that he had been retained by the Respondent to assist him to obtain counsel to deal with the costs submissions and sought a 30 day extension to the deadline. The Applicant’s counsel objected, noting the delay and the number of lawyers the Respondent had involved, without yet retaining one to deal with costs. In the circumstances, the extension was refused. Mr. Mason subsequently filed his own costs submissions.
[9] The Applicant sought costs from the Respondent on a substantial indemnity scale in the amount of $71,191.94 inclusive of fees, disbursements and taxes for the period after March 12, 2014 on the ground that the Applicant had served an offer to settle on the Respondent on that day, six days before the trial commenced. (The Applicant’s materials say seven days, but her counsel acknowledged that six was correct.) It offered to settle the issue of spousal support with the Respondent paying the Applicant $6,650 per month. The offer was open until the start of trial. It was not accepted and, as noted above, there was a trial of the issue of spousal support, which lasted nearly two weeks. After trial, the Applicant was awarded spousal support of $9,584 per month, substantially more than she was willing to accept in her offer.
[10] Family Law Rule 24 contains provisions for the awarding of costs. In particular, there is a presumption that a successful party is entitled to its costs and a list of factors to be considered in setting the amount of costs. This is informed by family law rule 18 which provides for offers to settle. In particular, rule 18(14) provides:
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
...
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
[11] However, Rule 18(16) also says that, when the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[12] Ultimately, the court has considerable discretion in fixing costs.
[13] I have considered the costs submissions filed by the parties and the factors enumerated under Family Law Rule 24, including the importance, complexity or difficulty of the issues, the reasonableness or unreasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, and the expenses properly paid or payable as well as Rule 18 regarding the Respondent’s failure to accept the offer. In addition, I have considered the principle of proportionality and other principles set forth by the Court of Appeal, specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[14] I conclude that an award of costs in the amount of $60,000 inclusive of fees, disbursement and taxes would be a reasonable one in the circumstances, and I order the Respondent to pay to the Applicant that amount within 30 days. That is for the period from March 12 to March 31, 2014. Each party shall continue to bear their own costs for the period prior to that.
Justice J.A.S. Wilcox
Released: February 3, 2015