Ducki v. Ducka, 2016 ONSC 7308

Ducki v. Ducka, 2016 ONSC 7308

CITATION: Ducki v. Ducka, 2016 ONSC 7308

COURT FILE NO.: FS-16-20900

DATE: 20161123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SLAWOMIR DUCKI

Applicant

– and –

MARIA DUCKA

Respondent

David K. Sherr for the Applicant

Self-represented and acting in person

HEARD: WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

DIAMOND J.:

1In my Endorsement dated October 20, 2016, I granted the applicant’s motion seeking an order for partition and sale of the matrimonial home. I invited the parties to exchange and deliver written submissions if they were unable to agree upon the costs of the motion. I have now received and reviewed those written costs submissions.

2The applicant seeks his costs of the motion on a full indemnity basis in the all-inclusive amount of $7,949.55, or in the alternative on a partial indemnity basis in the all-inclusive amount of $5,678.25.

3The respondent submits that the applicant is the party responsible for the delay in the sale of the property, and requests that she be awarded her costs of the motion in the all-inclusive amount of $2,500.00 (which amount is presumably on a full indemnity basis as she was not represented by counsel on the motion).

4In Serra v. Serra 2009 ONCA 395, the Court of Appeal for Ontario held that modern costs rules are designed to foster three fundamental purposes:

(a) to partially indemnify successful litigants for the cost of litigation;

(b) to encourage settlement; and

(c) to discourage and sanction inappropriate behaviour by litigants.

5As held by Justice Sherr in Oduwole v. Mosses 2016 ONCJ 653, a costs award should always reflect what the Court views to be a fair and reasonable amount to be paid by the successful party.

6Rule 24(1) of the Family Law Rules creates a presumption of costs to be awarded in favour of the successful party. I agree with the applicant that he was successful on the primary relief sought on the motion. While the applicant did seek an order for exclusive possession of the property to facilitate its listing and sale, and I did not grant him exclusive possession, that relief was ancillary to the primary relief and I did order alternative terms to ensure that the listing and sale of the property proceeds smoothly.

7In any event, the respondent opposed the motion in its entirety, and for the reasons set out at pages 2 through 6 of my Endorsement, I did not find any basis to interfere with the applicant’s prima facie right to an order for partition and sale. Accordingly, I find that costs of this motion ought to be payable by the respondent to the applicant.

8With respect to the scale of costs, the applicant submits that full indemnity costs ought to be awarded for two reasons: (a) the respondent’s conduct leading up to and in opposing the motion was unreasonable, and (b) the results achieved on the motion were more successful than the terms of the applicant’s Offer to Settle served upon the respondent on October 19, 2016.

9I do not find the respondent’s conduct to be so unreasonable as to attract an award of full indemnity costs. Once the applicant moved out of the home, the respondent paid for nearly all of the property expenses. Some of the positions she advanced in opposition to the motion were not frivolous or devoid of merit, but simply out of time due to limitation periods or not entirely supported by the evidence.

10I have reviewed the applicant’s Offer to Settle, which contains additional terms unrelated to the relief sought on the motion including the release of some of the sale proceeds to each party with the balance to remain in trust pending the disposition of this proceeding. I do not find that the provisions of Rule 18(14) have been trigged by the applicant’s Offer to Settle due to such additional terms which did not form part of my Endorsement.

11I therefore order costs of the motion to be fixed on a partial indemnity scale. I have reviewed the applicant’s Bill of Costs. The time dockets spent by counsel for the applicant appear to be reasonable, although I do not believe the time spent preparing the application itself is a cost of this motion.

12Bearing in mind what the respondent would have reasonably expected to pay in the event she was unsuccessful, in the circumstances of this case I order the respondent to pay the applicant his costs of the motion on a partial indemnity basis in the all-inclusive amount of $5,000.00 payable on the earlier of December 23, 2016 or out of the net proceeds of sale of the property, to be allocated against the respondent’s share of those proceeds in due course.

Diamond J.