Bogaczewicz v. Bogaczewicz, 2016 ONSC 8127

CITATION: Bogaczewicz v. Bogaczewicz, 2016 ONSC 8127

COURT FILE NO.: FS-13-77114

DATE: 2016 12 23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bozena Bogaczewicz v. Romuald Bogaczewicz

BEFORE: LEMAY J

COUNSEL: A. Godek for the Applicant

M. Tubie for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

1This was a pair of motions relating to the sale of the jointly owned home at 1226 Lakebreeze Drive in Mississauga, Ontario. The parties are proceeding to trial in January.

2The Applicant sought an Order for immediate partition and sale of the home without the interference of the Respondent. The Respondent, in turn, brought a motion permitting him to refinance the home as he currently lives in the home, and the T-D Bank was seeking to foreclose on the property and move to sell it after December 16th, 2016.

3The Respondent was successful in his motion and the Applicant’s motion was dismissed, in large part because the Applicant had entered into an agreement in mid-November relating to the refinancing of the Lakebreeze property. That agreement set out terms under which that property would be refinanced, and was incorporated into an Order of André J. on November 18th, 2016. It was clear that the Respondent had complied with those terms.

4With this background, I will now set out the positions of the parties and my analysis.

Positions of the Parties

5The Respondent seeks full indemnity costs in the amount of $7,910.00 on the following grounds:

a) The Respondent was the successful party in the motion, and costs should follow the event in this particular case.

b) The Applicant’s motion was dismissed in part because she was unreasonably withholding her consent to the implementation of the agreement that she had made in November.

6The Applicant also seeks costs, in the sum of $5,939.70, on the following grounds:

a) It is clear that the Respondent cannot afford to refinance the Lakebreeze property.

b) The Applicant’s position was not unreasonable, given the failure of the Applicant to pay child support.

c) The Applicant’s goal was not to force the Respondent to move out of the house.

7In support of her position, the Applicant’s counsel has provided me with a number of cases that stand for the proposition that partition and sale is a remedy that is routinely granted when property is jointly owned.

Analysis

8There are no offers to settle in this case. As a result, the relevant principles that the Court is required to apply in assessing costs awards are set out in Rule 24 of the Family Law Rules. The most relevant of those principles to this case are:

a) A successful party is presumed to be entitled to costs.

b) The importance, complexity or difficulty of the issues.

c) The reasonableness or unreasonableness of each party’s behavior in the case.

d) The time properly spent on the case.

9In this case, the first three factors all support a significant costs award in favour of the Respondent. The Respondent was clearly the successful party in this case, and I agree with him that there is no reason to depart from the presumption that the successful party is entitled to its costs.

10In addition, this was an important issue to both parties, as it concerns one of their significant assets. In particular, for the Respondent, it was an important issue as it concerned the house that he lives in. This is a factor that favours a higher award of costs in the Respondent’s favour.

11This brings me to the reasonableness of each party’s behavior. The Respondent did not behave unreasonably in this matter, as he had an agreement in November, and simply moved to enforce that agreement. It is the Applicant’s reasonableness that is of concern to me. I am of the view that she did not behave reasonably in either resisting the Respondent’s motion or bringing her own motion.

12I acknowledge that the law generally allows for the partition and sale of jointly owned property, and that a joint owner has a prima facie right to partition and sale (see Allard v. Sylvain-Allard 2015 ONSC 2052, at paragraph 10). However, this is not the typical case. In this case, the Applicant had agreed that she would support a refinancing of the property under certain terms. The Respondent complied with those terms. The Applicant then tried to resile from her agreement, arguing that the Respondent had not complied with the terms of the agreement and that the Respondent could not afford to maintain the property. The Applicant continues to advance some of the same arguments in her costs submissions.

13In my view, the Applicant’s conduct was unreasonable. Instead of bringing her motion, she should have complied with the terms of the agreement without the involvement of the Court. This is also a factor that supports a higher award of costs in the Respondent’s favour.

14This brings me to the quantum of costs being sought by the Respondent. I am of the view that the amount he seeks is entirely unreasonable for a motion of this nature, even if there were multiple appearances. His legal bill appears to be substantially higher than the Applicant’s legal bill because he has had two separate lawyers involved in this case.

15When I consider all of these factors together, I am of the view that the Applicant should pay the Respondent his costs in the sum of $3,500.00, inclusive of HST and disbursements, and I so order.