Court File and Parties

Court File No.: FC-14-1152 Date: 2016/09/29 Superior Court of Justice - Ontario

Re: Diana Miller, Applicant And Robert Clarke Miller, Respondent

Before: Justice A. Doyle

Counsel: Ian C. Vallance, for the Applicant Edith M. Holly, for the Respondent

Heard: In writing

Costs Endorsement

[1] The Court heard a motion dealing with matters arising from my order of May 6, 2016 which required the respondent to follow the recommendations of the realtor to facilitate the sale of the jointly held matrimonial home.

[2] On August 23, 2016, the Court ordered that the respondent would be given until September 14, 2016 to complete the repairs otherwise the applicant would be entitled to exclusive possession. The Court also ordered the respondent to provide executed consents and authorization to the applicant’s expert in order for her to prepare an independent medical report.

[3] After considering the parties’ costs submissions, the factors set out in Rule 24 of the Family Law Rules, O. Reg. 114/99, the Bill of costs and for the reasons set out below, the Court orders that the respondent pay the applicant the amount of $3,500 in costs.

Applicant’s position

[4] The applicant is requesting costs in the amount of $6,044.95 for fees and disbursements, inclusive of HST.

[5] She submits that she should be entitled to costs on a substantial indemnity basis on the following basis:

• the respondent failed to comply with the parties’ 2015 separation agreement where he was to buy-out his wife’s interest in the matrimonial home, failing which the home would be sold;
• he failed to comply with the May 2016 order which required him to comply with the recommendations of the realtor;
• he failed to cooperate with the realtor’s recommendation regarding the reduction of the sale price; and
• the respondent had previously stated that he had complied with Dr. Jackson’s request for disclosure when he had not.

Respondent’s Position

[6] The respondent submits that each party should bear their own costs for the following reasons:

• he is on disability and has no means to pay; and
• there was divided success and there was no clear winner.

[7] He did not provide a bill of costs or offers to settle with his costs submissions.

Legal principles

[8] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 stated that the cost rules are designed for the fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation (2) to promote and encourage settlement, and (3) to control behaviour by discouraging frivolous suits if the defences that lack merit.

[9] Rule 24(11) of the Family Law Rules, O. Reg. 114/99 sets out the factors to consider in determining costs.

Analysis

[10] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 provides that there is a presumption that the successful party is entitled to costs of a motion.

[11] The Court finds that the applicant has been successful in that the Court granted an order for disclosure, found that the respondent had not complied with the previous Court order and ordered him to follow the recommendations of the realtor. Due to his delay in doing so, the Court ordered that if he failed to comply by a certain date, the applicant would have exclusive possession of the matrimonial home.

[12] The respondent had partial success in that the Court accepted the terms of his release of his medical information which would be provided directly to the applicant’s expert.

[13] In determining what amount of costs should be awarded to the applicant, the Court considers the following factors:

(a) The importance complexity and difficulty of the issues:

• The issues of the payment of the equalization payment of $233,000 and sale of the home have been outstanding since the separation agreement dated December 2015. In response to the applicant’s claim to enforce the agreement, the respondent is requesting that this agreement be set aside. In the meantime, the house has been ordered sold and a Court order dated May 6, 2016 required the parties to follow the recommendations of the realtor.
• The payment is a sizeable amount. There is added complexity in this matter as the respondent is alleging that he lacked capacity to understand the true nature of the agreement at its execution.

(b) the reasonableness or unreasonableness of each party’s behaviour in the case.

• The Respondent admitted to failing to complete at least three items recommended by the realtor: cleaning the garage, painting to remove smoke odour and replacing stained carpet.
• Although he showed some cooperation with respect to the sale, at the motion he continued to insist that he wished to buy out the applicant’s interest. However, he failed to provide evidence of how he could afford it and what attempts he had made to address the deficiencies to make the home sale-ready as recommended by the realtor. This is not acceptable behaviour on the part of the respondent in the face of a Court order.
• He lives in a mortgage free home and the applicant, who believed that she would be receiving a payment pursuant to the separation agreement, purchased another home and is making mortgage payments.

(c) the lawyer’s rates;

• Counsel for the applicant is a senior family lawyer with over 26 years of experience. His hourly rate of $425 per hour is reasonable.

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

• In reviewing the account submitted, counsel spent 11.9 hours and the balance involved the services of a junior lawyer, student, researcher and disbursements and HST.
• The Court finds the account reasonable in light of the issues before the Court.

(e) expenses properly paid or payable;

• The disbursements of $283.01 for copies, printing, scanning, etc. are appropriate.

(f) Any other relevant matter

• The respondent submits that he is not in a position to pay costs. The Court notes that he earns $4478 per month tax free, which is over $53,000 tax free on an annual basis. He has no mortgage payments and is not paying support. The Court does not accept this position.

Miscellaneous

[14] In her costs submissions, the applicant requested a ruling regarding the list price. In its decision, the Court declined to rule on that issue as the evidence indicated that the respondent had not had an opportunity to discuss this issue with the agent. The May 6, 2016 order which is still in full force and effect requires both parties to continue to cooperate and follow the recommendations of the realtor.

[15] In conclusion, the applicant is entitled to her costs on a partial indemnity basis and the appropriate amount is $3,500.

Released: 2016/09/29 Madam Justice A. Doyle