CITATION: DeRose v. DeRose, 2017 ONSC 4112
COURT FILE NO.: FS 84/16
DATE: 2017/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rebecca Marjorie DeRose
Judith Holzman, for the Applicant
Applicant/Recipient
- and -
Anthony Peter DeRose
David I. Shapiro, for the Respondent
Respondent/Payor
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I heard this garnishment hearing in Welland, Ontario on April 28, 2017. I provided written reasons to the parties on May 9, 2017. I have now received and reviewed the costs submissions of both parties.
The Position of the Applicant
[2] The applicant’s actual bill of costs is $21,023.54 inclusive of disbursements and HST. This is the second bill of costs submitted. In the first bill of costs the applicant’s total fees inclusive of disbursements and HST was $17,955.81.
[3] The applicant served an offer to settle which included the release to the wife of $73,160.84 with the balance to be held by the court. This was in accordance with my decision released to the parties on May 9, 2017.
[4] In addition, the wife initially requested $15,000 for costs, but later was prepared to accept $11,000 in costs.
[5] No written offer to settle was served by the respondent.
[6] The applicant submits she was completely successful on the motion and, therefore, seeks costs fixed at $20,000 inclusive of disbursements and HST.
The Position of the Respondent
[7] The offer to settle of the applicant did not comply with rule 18(14) of the Family Law Rules, as it was not made at least one day before the motion date.
[8] The respondent further submits, although not made in writing, the respondent on the evening before the motion, did propose to the applicant’s counsel a release of funds amounting to $73,160.84 to the applicant plus $7,500 for costs.
[9] The respondent proposes that costs payable to the applicant be fixed at $7,500 inclusive of disbursements and HST.
Analysis
[10] The applicant is the successful party and is, therefore, entitled to costs of the garnishment heating in accordance with rule 24 of the Family Law Rules.
[11] The only written offer to settle was that of the applicant, although it is correct that it did not comply with rule 18(14) of the Family Law Rules as it was not served one full day prior to the hearing.
[12] However, the only offer from the respondent came orally to the applicant on the evening before the hearing.
[13] From the submissions of both counsel, it appears that parties had agreed in their discussions on the evening before the hearing that the amount of $73,160.84 be released to the applicant. However, parties could not agree on costs.
[14] As a result, at the hearing the parties then each reverted to their former positions, with the applicant submitting that $73,160.84 should be released and the respondent submitting that $14,432.75 should be released.
[15] The applicant submitted a bill of costs. No bill of costs was received from the respondent.
[16] The applicant’s bill of costs is reasonable in terms of the hourly rates charged and work performed by either counsel having carriage of the file and/or others in the law firm including law clerks.
[17] I have considered those factors enunciated in rule 24(11) of the Family Law Rules.
[18] I have also considered rule 18 with respect to offers to settle.
[19] Further, I have considered some general principles enunciated by the courts with respect to the fixing of costs.
[20] In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (CA), the court stated that rather than a mathematical calculation, the overall objectives of costs is to fix an amount that is fair and reasonable.
[21] The respondent has submitted that some of the items in the applicant’s bill of costs may not be directly related to the garnishment issue, for example, some may relate directly to banking responses and not to the respondent directly.
[22] While some of that may be true, that does not substantially reduce the bill of costs and the applicant was still forced to deal with some inappropriate responses that were made by the banks with respect to the issue of the garnishment.
[23] What is clear is that the respondent ought to have accepted the applicant’s offer to settle. He failed to do so.
[24] As a result, I conclude that reasonable costs under all of the circumstances are fixed at $15,000 inclusive of disbursements and HST.
Order
[25] The respondent shall pay to the applicant costs of the garnishment hearing heard on April 28, 2017 fixed at $15,000 all inclusive of disbursements and HST payable within 30 days.
Maddalena J.
Released: June 30, 2017
CITATION: DeRose v. DeRose, 2017 ONSC 4112
COURT FILE NO.: FS 84/16
DATE: 2017/06/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Rebecca Marjorie DeRose
Applicant
- and –
Anthony Peter DeRose
Respondent
COSTS ENDORSEMENT
Maddalena J.
Released: June 30, 2017