ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Zlata Vujadinovic
Michael D. Lannan, for the Applicant
Applicant
- and -
Aleksander Vujadinovic
Respondent
Tania Harper, for the Respondent
THE HONOURABLE MR. JUSTICE G.A. CAMPBELL
COSTS ENDORSEMENT
1I have now received, read and considered the written costs submissions from both counsel.
[2]
Analysis
Rule 24 directs that the court shall decide promptly “in a summary manner” the issue of whether either party was successful (or partially successful); whether either party acted reasonably or unreasonably (or in bad faith); whether the issue(s) were important, complex or difficult and whether the party’s lawyers’ rates are/were reasonable and whether the amount of time claimed was “properly” invested in order to try the issue(s)to be determined.
3I find that the issue to be determined at trial was complex, important and difficult.
4On a first, cursory examination, the Respondent’s claim (demand) for payment to him of “his one-half share” of the equity in the matrimonial home would appear to be reasonable and justifiable by the wording of the Family Law Act.
5However, the facts of the case dictated that payment of the Respondent’s claim should both be delayed and reduced from an equal share.
6While the Respondent’s claim initially appeared “reasonable”, what was found to be unreasonable was his demand for an immediate payment of a full one-half share of the equity in the matrimonial home. The court found that the Respondent’s persistence in prosecuting his unreasonable demands would have forced the sale of the girls’ home and was not in their interests (“best” or otherwise). I find the Respondent’s claim to be selfish, ego-centric and unreasonable and should attract costs consequences.
7The terms of the Respondent’s Offer to Settle were nowhere near the terms of the final court order. That final court order was closer to the closing submissions of the Applicant’s counsel, although the Court declined to accept a reduction from the Respondent’s share of the equity for anticipated, future non-payment of child support of $54,432.00.
8Despite the rejection of that request (i.e.: deducting future child support from the Respondent’s share of the equity), the Applicant was clearly the more successful party, by far.
9The Spousal Support issue, although technically still extant, garnered no attention or effort at trial. By his opening statement, counsel for the Applicant all but abandoned that claim on her behalf. I do not consider “no order for spousal support” a loss for the Applicant or a win for the Respondent as it relates to a costs order.
10I am not persuaded that the results of trial were “mixed”. I recognize and accept that the Respondent made an Offer to Settle per the Rules and that the Applicant did not do so. She shall have the quantum of her costs order reduced as a result of that non-compliance with the Rules. (see Pother v. DaSilva (2014) ONCJ 443).
11I also acknowledge that counsel for the Respondent invested significantly more time and effort organizing the case and preparing and submitting briefs of documents and material than the Applicant’s counsel. That effort was very helpful at trial. Some was also helpful to (and the responsibility of) the Respondent. But that extra work will somewhat explain (together with the LAO vs. private funding difference in counsel’s hourly rate) the difference in total bills to the parties (i.e.: $33,736 v. $48,393).
12The Custody issue was settled before trial by Minutes of Settlement in November 2015. Those final Minutes of Settlement included a term that no costs were payable by either party regarding that issue. No costs shall be allowed for efforts to resolve that issue.
13There should also be no costs attributable to the participation of interpreters that were necessary for both parties (except indirectly, due to the trial-hearing time being extended due to translation delays).
14By following the principles of the myriad of costs decisions since 2005, I recognize that “earlier cases focused on the principle of indemnification or partial indemnification of the successful litigant”, and that “more recent cases have balanced this with the reasonable expectations of the losing party” (p.354, McLeod’s Ontario Family Law Rules Annotated 2014-2015). See Delellis v. Delellis (2005), 2005 36447 (ON SC), O.J. No. 4345 and Belanger v. Belanger (2005), CarswellOnt. 3076 and “in assessing costs, the court should not consider the fact that a litigant is legally aided (p. 356 McLeod, supra). See O’Sullivan v. Lindley (2000), O.J. 3965 and Foran v. Foran (2001), O.J. No. 430 and R (S) v. R (M) (2002), 2002 53246 (ON SC), O.J. No. 4238.
[15]
Disposition
After comparing the two lawyers’ bills and deducting a factor for the Applicant not serving an Offer to Settle; the extra work performed by the Respondent’s counsel; and the Applicant not succeeding entirely (she sought that the Respondent receive nothing for his share of the equity – i.e. such an unequal division reducing his share to ‘nil’), I find that a reasonable costs order of $22,500, inclusive of disbursements and HST, is both fair and reasonable and I so order that the Respondent is to pay the Applicant these costs by way of a set-off from his share of the equity in the matrimonial home.
G.A. Campbell J.
Released: December 21, 2016