Court File and Parties

COURT FILE NO.: FC-04-1974-1 DATE: 20170227 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROLINE MELIS Applicant – and – CORNELIS JOHANNES ZWANENBURG Respondent

Counsel: John E. Merner, for the Applicant Jennifer Johnston, for the Respondent

HEARD: By written submissions

Costs Endorsement

Beaudoin J.

[1] The Applicant, Caroline Melis, brought a motion to change the order of Justice Cosgrove dated May 25, 2007 which required her to pay spousal support in the amount of $3200 per month which amount was subsequently increased to $4200 a month effective January 1, 2015. The Applicant sought a termination of support, or in the alternative that if support was not terminated in its entirety, that support paid from the effective date of the new support Order be credited to her.

[2] On January 27, 2015, I released my decision and ordered the Applicant to pay support in the amount of $2086 per month until the Respondent reached the age of 67; and thereafter, at a rate of $1304 per month.

[3] The substantive issues on the motion concerned issues of “double dipping” and whether the Respondent was maximizing his assets for his own support. I subsequently determined that an appropriate support order could be achieved without resorting to the equalized portion of the Applicant’s pension.

[4] The Applicant claims that she was successful in respect to the central issue on the motion although she was not successful in the complete termination of support. Each party served an offer to settle. The Applicant’s offer to settle was $1500 month to age 65 and support to terminate at that date. The Respondent’s offer was $2200 a month with an ongoing with a review in the event of a material change in circumstances, or the Respondent attaining age 67. It further provided that a material change would not include the Respondent being in receipt of benefits under his Dutch pension or Canada Pension Plan prior to age 67.

[5] The Applicant submits that had she accepted the Respondent’s offer to settle, she would have been compelled to bring a further motion to change upon the Respondent attaining the age of 67. She further maintains that since neither party achieved the results of their respective offers to settle, and given the divided success, there should be no order as to costs.

[6] The Respondent seeks costs in the amount of $7,207.73, inclusive of tax. He seeks those costs on a substantial indemnity basis from preparation of materials responding to the motion until the date that the Respondent served his offer to settle, and on a full indemnity basis from the date of the service of the offer to settle.

[7] In her submissions, counsel for the Respondent has quantified the lifetime value (to age 85) of their respective offers to settle. While that is an interesting approach, I conclude that the issue of costs can be resolved having regard to the list of factors found in Rule 18 of the Family Law Rules, O. Reg. 114/99.

[8] Rule 18(14) of the Family Law Rules provides that a party who makes an offer is entitled to costs to the date of the offer and full recovery of costs from the date of the offer if the offer is made at least one day before the motion date, neither expires nor is withdrawn, is not accepted, and the result obtained is at least as favourable as the offer. The Respondent submits his offer meets the requirements.

[9] Rule 18(11) of the Family Law Rules provides a list of factors to be considered in assessing costs. These are:

a. the importance, complexity or difficulty of the issues; b. the reasonableness or unreasonableness of each party’s behaviour in the case; c. the lawyers rate; d. the time spent; e. expenses paid; f. any other relevant matter.

[10] The issue of ongoing support was of importance to both parties. The issue of “double dipping” required expert evidence and a review of the case law.

Conclusion

[11] While the Applicant was successful on issue of the income available to pay support, the Respondent was successful in opposing the motion to terminate the support payable to him. He is presumptively entitled to costs as set out in Rule 24(1) of the Family Law Rules. I conclude that the Respondent’s offer did not meet the requirements of Rule 18(4) of the Family Law Rules. While the offer with respect to support payable to age 67 is very close to the amount ordered, the offer would have obligated the Applicant to bring a further motion to change at age 67. I conclude that the Applicant’s refusal to accept that offer was reasonable in that regard. At this age and stage of their lives, these parties require some certainty with respect to the future.

[12] I conclude that the Respondent is entitled to his costs which I fix on a partial indemnity basis throughout. Having regard to the importance of the matter and the complexity of the issues, I conclude that the time spent by the Respondent’s counsel is reasonable. I therefore order the Applicant to pay the Respondent’s costs in the amount of $4,686.82 inclusive of HST, plus disbursements of $32.72, for a total of $4719.54.

Mr. Justice Robert N. Beaudoin Released: February 27, 2017