Plese v. Herjavec, 2016 ONSC 2035

Court File and Parties

Citation: Plese v. Herjavec, 2016 ONSC 2035 Court File No.: FS-15-401094 Date: 20160323 Superior Court of Justice - Ontario

Re: Diane Plese, Applicant And: Robert Herjavec, Respondent

Before: Kiteley J.

Counsel: Stephen Grant and Erin K. Crawford, for the Applicant Bryan Smith, for the Respondent

Heard: in writing

Endorsement As To Costs

Background

1On November 10, 2015 I heard submissions with respect to the Applicant’s motion and the Respondent’s cross-motion and on December 3, 2015 I released an endorsement [2015 ONSC 7572] in which I made an order requiring the Respondent to pay temporary spousal support in the amount of $124,115 per month and requiring the Respondent to pay temporary child support in the amount of $44,992 per month, both commencing November 1, 2015. I reserved to the trial judge the claims for retroactive spousal and child support to the date of separation. I dismissed the Respondent’s motion to delete paragraphs 73 to 76 of the affidavit of the Applicant sworn October 22, 2015. Prior to hearing submissions that day, the parties had agreed to other orders and accordingly I made an order on consent that the Florida property and the Muskoka property be listed for sale and that the claim for a divorce would be severed from the claims for corollary relief.

2I directed counsel to make written submissions by January 15 and February 1, unless they were able to arrive at an agreement as to costs. Mr. Smith asked to attend before me in order to raise an issue as to what he referred to as “clarification” of my order. Counsel attended on January 21 and the costs submissions were postponed, eventually being delivered by February 22 2016.

Positions of the Parties

3On behalf of the Applicant, counsel provided a bill of costs that included fees of $31,650 plus HST of $4,114.50 and disbursements including HST of $276.21 for a total of fees and disbursements of $36,040.71. Counsel asked for costs in the amount of $25,000.

4On behalf of the Respondent, counsel concedes that the Applicant is entitled to costs. Mr. Smith reduced the bill of costs by $5,395.75 to discount for unnecessary duplication of counsel and the attendance on January 21, leaving a balance of $30,644.96. Of that amount, he took the position that costs in the amount of $18,386 (or 60% of that total) was reasonable and within the expectations of the losing party.

Analysis

5I agree with the reductions on account of duplication of work proposed by Mr. Smith. It appears from the bill of costs that Ms. Crawford did the lion’s share of the preparatory work while Mr. Grant made submissions. That was an appropriate division of labour. But having said that, it was not necessary for her to attend at the hearing of the motion. As for the re-attendance on January 21 at the request of Mr. Smith, I did not specifically reserve costs of that day. However, Mr. Smith asked for it as a clarification of the order that I had made on the motion and it is reasonable to include that attendance as part of the motion without a specific order. On that attendance I also agree that Ms. Crawford’s participation was duplication and not necessary. So I include only Mr. Grant’s services but at 60% or $720 plus HST in the amount of $93.60 for a total of $813.60.

6The Respondent’s offer is dated November 5, 2015 and provided that he would pay spousal support in the amount of $43,000 per month and child support in the amount of $12,180 per month and that the Florida property and Muskoka property would be listed for sale and that the divorce would be severed from the corollary relief as well as other miscellaneous terms.

7The Applicant’s offer is dated November 6, 2015 and provided that the Respondent would pay $44,992 per month in temporary child support and $100,000 per month in temporary spousal support as well as other terms. It was silent on sale of the properties and severance.

8The Applicant’s offer was better than the outcome of the motion with respect to spousal support and the same as the order with respect to child support. In addition, what informed the order was my finding as to the income of the Respondent that was the fundamental point of conflict and on that issue, the Applicant was clearly successful. I agree that given the amount of support sought, recovered and offered, the Applicant was successful and is presumed entitled to costs.

9But that does not end the matter. There were other matters including the issue raised by the Respondent about sale of the Florida and Muskoka properties, each of which was expensive to maintain. The Applicant did not make reference to either in her offer to settle and she only conceded the point on the morning of the hearing of the motion when she signed the consent. The Respondent was clearly successful on that issue and on severance of the divorce.

10On the basis of divided success, success in relation to the offers, and reasonable expectations of the parties, I accept the submission of counsel for the Respondent as modified above.

ORDER TO GO AS FOLLOWS:

Order

11The Respondent shall pay to the Applicant costs of the motions heard November 10, 2015 calculated as 60% of $30,644.96 + $813 for a total of $19,199 payable no later than April 29, 2016.

Kiteley J.