Court File and Parties

Citation: Finch v. Finch, 2016 ONSC 5219 Bracebridge Court File No.: FC-09-74-01 Date: 2016-08-18 Superior Court of Justice - Ontario

Re: Donna Morrow, Applicant And: Eugene Finch, Defendant

Before: The Hon. Mr. Justice J.P.L. McDermot

Counsel: Michael Sirdevan, for the Applicant David Winnitoy, for the Respondent

Heard: By written submissions

Costs Endorsement

[1] By consent order dated May 9, 2011, Mr. Finch was ordered to pay spousal support of $2,200 per month to Ms. Morrow. On April 28, 2016 I heard his motion to change the support payable under that order.

[2] At the hearing of the motion Mr. Finch abandoned his claim for termination of support retroactive to the commencement of the motion to change, but he maintained that spousal support should immediately come to an end.

[3] Ms. Morrow wished spousal support to continue. However, she acknowledged there should be an end date for spousal support. During argument, she offered a termination of support after four years.

[4] My determination was that spousal support be “stepped down” from the present level of $2,200 per month over a three year period when spousal support would terminate.

[5] I invited costs submissions. Both the applicant and the respondent have made costs submissions. The applicant seeks partial recovery costs totalling $6,214.25. The respondent also seeks partial recovery costs, but in a substantially higher amount of $9,724.22. Both figures are inclusive of HST and disbursements.

[6] Both parties suggested they were successful on the hearing of the Motion to Change. The applicant had served an Offer to Settle which offered a step-down of spousal support over seven years. Alternatively the applicant offered to accept a lump sum spousal support payment of $70,000. The respondent made no offer to settle.

[7] Neither party alleges unreasonable conduct although the applicant suggests that the respondent was unreasonable in not making an offer to settle this proceeding.

Analysis

[8] Generally under Rule 24(1) of the Family Law Rules[^1] costs follow the event and the successful party is presumed to be entitled to an award of costs. I may however take into account unreasonable conduct by a party under Rule 24(4) and even a successful party may be disentitled to costs if his or her conduct is found to be unreasonable under the rule.

[9] In determining success, I may take into account any offers to settle submitted by either of the parties: see Simms-Howarth v. Bilcliffe, 2000 22584 (ON SC), 2000 O.J. No. 330 (SCJ) at para. 9 and Lawson v. Lawson, 2008 23496 (ON SC), 2008 O.J. No. 1978 (SCJ) at para. 7.

[10] I note that under Rule 18(16) when I am ordering costs I may further take into account any Offers to Settle even if they do not comply with Rule 18(14).

[11] Unreasonable conduct can include the failure to provide an offer to settle: see Di Bratto v. Sebastiao, 2015 ONSC 3979 at para. 21.

[12] In this case the position of the applicant can be only defined by reference to her Offer to Settle and later argument at the motion. Initially her Offer to Settle sent December 23, 2015 suggested a reduction in support over seven years. At the motion her position was that support should end after four years. This was, as noted by Mr. Winnitoy, an entirely reasonable position considering the fact that there are no children of marriage and in light of Mr. Finch’s upcoming retirement.

[13] As the respondent made no offer, his position can only be defined by the position taken by counsel at argument of the motion and previously. From argument it was my impression that Mr. Finch wished throughout a retroactive reduction in support from the commencement of the motion: he only abandoned this position on the date of argument. Mr. Finch also appeared to be willing to take nothing less than an immediate termination of spousal support as argued by his counsel at the motion.

[14] I choose not to find unreasonable conduct on the part of the respondent due to his failure to submit an Offer to Settle; his failure to provide an offer was more than made up by his counsel’s willingness to have this matter argued by way of motion rather than a full trial of the issue. I do not find unreasonable conduct on the part of the respondent.

[15] However, I do find that Mr. Finch’s position was more inflexible than that of the applicant. He would take nothing less than a termination of spousal support. Although Mr. Winnitoy took the position that Mr. Finch was successful in obtaining a termination of support, it appears from Ms. Morrow’s Offer to Settle that a termination of support was common ground; the only issue was as to when that termination would take place. In light of the fact that Ms. Morrow was able to delay that termination for three years as opposed to Mr. Finch’s claim for an immediate termination, Ms. Morrow was successful on the motion.

[16] Accordingly, as the successful party, Ms. Morrow is entitled to an award of costs for the Motion to Change.

Quantum of Costs

[17] Mr. Sirdevan seeks costs of $6,314.25 inclusive of disbursements and HST. I find the hourly rates set out in the Bill of Costs as well as the time spent by himself and his staff (including Mr. Miller) to be reasonable under the circumstances.

[18] That being said, in determining the quantum of costs I take into account the fact that the Offer to Settle contained a seven-year step-down provision or alternatively a lump sum award of costs which came nowhere close to what was ordered. The applicant only obtained partial success at the motion. She also bears some responsibility in abandoning an unsuccessful business well after she probably should have.

[19] I take all of these factors into account in quantifying costs. There shall be an award of costs to the applicant in the amount of $4,500. As spousal support was an issue, costs shall be collectable as support.

McDERMOT J.

Date: August 18, 2016

[^1]: O. Reg. 114/99