Berman v. Berman, 2017 ONSC 4966

Citation: Berman v. Berman, 2017 ONSC 4966 Newmarket Court File No.: FC-14-044961 Date: 2017-08-21

Ontario Superior Court of Justice Family Court

Between:

Yakov Eitan Berman, Applicant

– and –

Alissia Berman, Respondent

Counsel: P. Viator, for the Applicant D. Frodis and K. Levitt, for the Respondent

Supplementary Written Costs Submissions Received: February 24, 2017

Supplementary Decision on Costs

Fryer, J

[1] I heard a trial of this matter over three weeks from May 16-31, 2016. My decision was released on October 5, 2016: Berman v. Berman, 2016 ONSC 6249.

[2] The parties delivered written submissions with respect to costs thereafter and I released my decision with respect to costs on February 2, 2017: Berman v. Berman, 2016 ONSC 7648.

[3] In my initial costs decision I awarded the Respondent (Mother) $132,000 plus HST in partial recovery costs of which $30,000 plus HST was to be collected by the Family Responsibility Office as attributable to child support.

[4] The Respondent (Mother)’s costs submissions were due on November 4, 2016. On October 25, 2016 the Respondent (Mother) served an offer to settle with respect to the issue of costs indicating she would accept $100,000 “in full satisfaction of costs.”

[5] The Applicant (Father) notes that the offer also stated that, “if the offer is accepted by October 26, 2016 at 5:00 pm then there will be no additional costs.” He submits that this made the offer ambiguous and in any event did not leave him with sufficient time to respond.

[6] The Applicant (Father) did not serve an offer to settle with respect to costs and he did not accept the Respondent (Mother)’s offer.

[7] In her costs submissions the Respondent (Mother) advised the court that she had served an offer and I indicated that I would receive further submissions regarding the Respondent (Mother)’s claim for further costs associated with the preparation of costs submissions.

[8] The Applicant (Father) asserts that it is counter-productive to award costs on costs. To the contrary this is a practice that should be encouraged having regard to Rule 24 of the Family Law Rules, O. Reg. 114/99 (“FLR”) and Rules 2(2) and 2(3) generally.

[9] The Respondent (Mother)’s offer to settle costs meets most of the criteria set out under Rule 18(14) of FLR.

[10] The Applicant (Father) submits that Rule 18 does not apply to “costs on costs”. The definition of “offer” set out in Rule 18(1) includes: “an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer”. In my view this definition is broad enough to encompass an offer to settle a claim for costs following a trial. Although parties can make an offer with respect to costs prior to trial, it is often impractical to do so before receiving the trial judge’s decision and weighing relative success as well as the actual cost of the trial.

[11] There is a question as to whether the Respondent (Mother)’s costs offer meets the strict criteria of Rule 18(4) due to the possibility that she might seek further costs if it was not accepted by the deadline: Studerus v. Studerus, 2014 ONSC 2223.

[12] I am prepared to consider the offer under Rule 18(16) and under Rule 24 of the FLR.

[13] Even having regard to the deadline and the possibility of further costs, the Respondent (Mother)’s offer was reasonable when compared to the ultimate award. I ordered a total of $132,000 plus HST ($149,160) and I allocated $30,000 to be collected by the Family Responsibility Office something that was in the Respondent (Mother)’s favour but not included in her offer. The Respondent (Mother) offered to accept $100,000 inclusive of HST without Family Responsibility Office enforcement.

[14] The Respondent (Mother) in this case exhibited reasonable behaviour in attempting to resolve the issue of costs without the need for each party to do further work and incur the additional expense associated with preparing costs submissions. Had the Applicant (Father) accepted the offer to settle, this would also have had a positive impact on the court’s resources.

[15] The Respondent (Mother) incurred fees of $4,954.49 with respect to costs prior to her offer to settle and $5,944.36 after delivery of her offer to settle.

[16] The Applicant (Father) submits that the Applicant (Mother)’s claim is “double dipping”. My original costs award did include a consideration of the time spent on costs submissions that were claimed by the Respondent (Mother). However, I only awarded partial recovery cost to the Respondent (Mother) for all but the issue of the Applicant (Father)’s income and child support[^1].

[17] I have already made findings with respect to the appropriateness of the time spent and the effort expended by the Respondent (Mother)’s counsel in my original costs decision. To the extent that fees for costs submissions were included in the largely partial recovery costs awarded in my original decision, I am prepared to increase the costs associated with the preparation of costs submissions such that the amount is closer to full recovery.

[18] Having regard to the principles with respect to costs set out in Rule 24 of the FLR and the cases of Serra v. Serra, 2009 ONCA 105, Sambasivam v. Pulendrarajah, 2012 ONCJ 711 (OCJ) and Berta v. Berta, 2015 ONCA 918, and in the exercise of my discretion the Applicant (Father) shall forthwith pay additional costs of $3,500 plus HST.

Justice L.E. Fryer

Released: August 21, 2017

[^1]: The Respondent (Mother) sought costs of between $210,307.33 and $190,640.92.