Overview

[1] Further to my judgement of January 11, 2016, I have reviewed the parties’ written submissions on costs.

[2] This was a six day trial dealing with issues of custody, access, residency, and several discrete issues on equalization including the manner in which the equalization payment was to be satisfied.

[3] My decision was to grant custody of their son to Mrs. Spurgeon, which she sought, but maintain the 50/50 residency arrangement which Mr. Spurgeon sought. I ordered a sharing of Christmas Day and New Year’s Day. I ordered that Mr. Spurgeon pay support based on his 2014 line 150 income. I denied the disputed deductions sought by each party on their NFP statements. I denied the disputed exclusion Mrs. Spurgeon sought on her NFP statement. I accepted Mrs. Spurgeon’s argument that the equalization payment should be satisfied in part by way of a pension transfer. I ordered Mr. Spurgeon to pay $11,473.04 as his share of the carrying costs of the home after separation.

Costs Submissions by Mrs. Spurgeon

[4] Mrs. Spurgeon argues that, measured in dollars, she was the more successful party on the property issues. She succeeded on the equalization payment order and the carrying costs order. Although both parties had deductions disallowed, Mr. Spurgeon’s were $5,000 greater than Mrs. Spurgeon’s. As well, she was successful in arguing that Mr. Spurgeon’s 2014 income be used for child support purposes.

[5] Mrs. Spurgeon notes that she succeeded on custody, lost on residency and Christmas access was of divided success. She argues that she was still predominantly successful.

[6] Mrs. Spurgeon discloses that she made an offer to settle the financial issues on August 4, 2015. The offer was more generous financially to Mr. Spurgeon than what he received at trial.

[7] She seeks her partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

[8] Mrs. Spurgeon argues that Mr. Spurgeon’s behaviour in the litigation is a factor. She submits that his failure to provide complete disclosure and to participate in meetings or discussions to resolve matters early should be considered.

[9] She seeks her costs of $1,980 on a partial indemnity basis up to the offer and $24,390 on a substantial indemnity basis following the offer, plus HST and disbursements of $1,394.80, for a total of $31,192.90. In the alternative, if only partial indemnity costs were to be considered, she seeks $22,263.40.

Costs Submissions by Mr. Spurgeon

[10] Mr. Spurgeon argues that he was the more successful party at trial and is entitled to his costs of $25,940.28 inclusive of HST and disbursements.

[11] He refers to Wharry v. Wharry, 2016 ONSC 268, at para. 14, where Justice Emery suggests that the appropriate considerations are “the time, evidence and attention to issues given at trial …. along with the objectives each party hoped to achieve”.

[12] Mr. Spurgeon points to para. 9 of my reasons where I stated that the bulk of the evidence and argument related to their son’s residential arrangements. He argues that 85 to 90 per cent of the trial related to these residential issues.

[13] Mr. Spurgeon disputes that he was not co-operative in settlement negotiations. He made offers and he agreed to narrow the issues for trial.

[14] Mr. Spurgeon points out that Mrs. Spurgeon’s offer of August 4, 2015 was not signed by her and, therefore, not a valid offer under Rule 18(4): see Dunn v. Shaw, 2014 ONSC 3208, at para. 27, and Sagl v. Sagl, 2014 ONSC 4077, at paras. 7-8.

[15] Mr. Spurgeon served a signed offer to settle on August 20, 2015. The applicable portions of that offer were joint custody and 50/50 residency for their son; shared Christmas and New Year’s; $5,000 towards post-separation expenses; and full payment of $64,673.25 cash for the equalization payment by Mrs. Spurgeon. He argues that the trial result was less favourable on equalization and post-separation expenses but more favourable on the “more important” issues of their son’s residency and Christmas access.

[16] He argues that his offer was more reasonable and that the trial would have been much shorter had Mrs. Spurgeon not sought primary residence of their son.

Discussion

[17] Mr. Spurgeon relies on my remarks, at para. 9, regarding the “bulk of the evidence” but fails to recognize that it was in reference to and under the heading of “Custody and Decision-Making”. The record shows that there was almost no evidence or argument for joint custody. There was evidence and argument by Mrs. Spurgeon supporting sole custody. The focus on their son’s issues largely related to residency, however, almost half the trial’s evidence and argument involved the financial issues.

[18] I recognize that Mr. Spurgeon did make an offer, consented to a number of terms for settlement, and narrowed the issues for trial. Overall, I am not in a position to state that his behaviour is a factor in these trial costs.

[19] I note that counsel for each party attended trial well-prepared; were courteous, professional, and on time. They both clearly made successful efforts to obtain consents on a number of issues to lessen the court time and reduce court costs for their respective clients.

[20] I find that because Mrs. Spurgeon’s offer was unsigned it does not comply with Rule 18(4) and she cannot, therefore, seek her substantial or full indemnity costs under Rule 18(14).

[21] As noted above, Mr. Spurgeon’s offer was more favourable to Mrs. Spurgeon on some issues and less favourable on others. For the purposes of trial time and effort, Mrs. Spurgeon’s success was mixed in comparison to Mr. Spurgeon’s offer. I do not find that it puts him on higher ground in the argument on costs.

[22] Compromise was needed by both to avoid this trial.

[23] The residency issue took court time but an unnecessary amount of evidence from both parties’ witnesses dealt with one incident upon the parties’ physical separation, when tempers ran high, that added no useful evidence to a determination of residency, or custody, some 20 months later.

[24] The Family Law Rules provide in Rule 24(1) that the successful party is presumed to be entitled to costs.

[25] In terms of issues, offers or proposals for settlement, trial time, number of witnesses, and argument, it is apparent to this court that success was divided. The success was almost equally divided, in fact.

[26] In the circumstances of this case, I order that each party shall bear their own costs.

Original signed by

M. J. Donohue, J.

Released: February 26, 2016

CITATION: Spurgeon v. Spurgeon, 2016 ONSC 1417

COURT FILE NO.: FS-13-78814-00

DATE: 2016-02-26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Catherine Anne Spurgeon

Martin C. Schulz, for the Applicant

and –

Michael Jeffery Spurgeon

Glen A. Cook, for the Respondent

Costs Endorsement

M. J. Donohue, J.

Released: February 26, 2016

Spurgeon v. Spurgeon, 2016 ONSC 1417

Case Summary

Overview

Costs Submissions by Mrs. Spurgeon

Costs Submissions by Mr. Spurgeon

Discussion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2