CITATION: Gauthier v. Mallon, 2017 ONSC 5231
COURT FILE NO.: FC-11-2011
DATE: 2017/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michèle Gauthier
Applicant
– and –
Richard Andrew Mallon
Respondent
Self-represented
Diana Carr, for the Respondent
HEARD: In writing
Endorsement on Costs
P. E. Roger, J.
[1] The parties could not resolve the costs of this Application. The Respondent provided written submissions, as ordered by this Court, but the Applicant did not, despite being reminded by this Court to do so.
[2] The outstanding issue to be decided is the issue of the costs of this Application.
[3] Fixing costs is a discretionary exercise. In exercising its discretion the Court considers relevant circumstances. Rule 24 of the Family Law Rules provides various factors to be considered when deciding entitlement and the appropriate amount of costs. In this case, rule 18 is also relevant as offers to settle were made by the parties.
Success
[4] Success is a factor to consider and there is a presumption created by rule 24 (1) that a successful party is entitled to costs.
[5] In this case, the Application raised a number of issues which were resolved as follows:
(a) The Applicant’s claim to set aside the separation agreement was dismissed - the Respondent was successful.
(b) The Respondent’s claim to enforce the pension division payment was granted with an amount of $95,041 plus interest ordered to be transferred to the Respondent - the Respondent was successful.
(c) The Applicant’s claims for custody and parenting adjustments were dismissed - the Respondent was successful.
(d) The Applicant’s claims that child and spousal support be varied and increased retroactively were granted in the amount of $71,774.37 (net of earlier costs decisions) - the Applicant was successful but only in part because the Respondent had conceded that spousal and child support should be changed to some extent as of 2013.
[6] Although success was divided, overall the Respondent was more successful.
Conduct of the parties
[7] The Respondent acted reasonably throughout the course of this trial. He had well prepared materials that were helpful to the Court. He reconstructed the documents to support entries in the joint net family property statement and consented to the disclosure of his earlier documents by the mediator.
[8] The Applicant, despite a clear written warning from the Court, failed to attend on the last two days scheduled for the completion of the trial. In addition, the Applicant failed to promptly disclose that she had obtained full-time employment and when this was discovered she failed to attend to complete the trial, although she did provide some relevant disclosure.
Offers
[9] The Applicant apparently made two offers, none of which is relevant to the issue of costs. On the other hand, the Respondent’s offers are relevant to the issues of costs and I agree with the Respondent that his September 2015 offers were more favourable to the Applicant than the order of this Court. These offers remained open until the start of trial and otherwise meet the conditions of rule 18 (14). Therefore, unless the Court orders otherwise, the Respondent is entitled to his costs from the date of his offer in September 2015 on a full recovery basis. Here, I see no reason to order otherwise.
Other factors
[10] The custody issue was not complex but the issues of the validity of the separation agreement and of spousal support were complex. I appreciate the efforts of the Respondent in properly re-creating and organizing the relevant documentation. These issues were important because of their potential impact on the financial circumstances of the parties. The Applicant’s lack of candour and lack of cooperation at the end of trial resulted in two brief appearances that could have been more productive.
[11] The Respondent has incurred significant costs, as outlined in the two bills of costs provided to the Court. The Respondent seeks partial indemnity costs to the date of his September 2015 offer, in the amount of $10,000, and costs on a full indemnity basis thereafter in the amount of $44,471, for a total of $54,471.
[12] The costs incurred and claimed by the Respondent are reasonable, proportionate and within the reasonable contemplation of the parties.
Conclusion
[13] Considering the circumstances of this case, as outlined above, I find that a fair and just disposition of the issue of costs is (1) that costs are payable by the Applicant to the Respondent and (2) to fix costs in the all-inclusive amount of $54,471.
[14] The costs of this Application are payable by the Applicant to the Respondent in the all-inclusive amount of $54,471. This is without prejudice to any previous order of costs made in this Application, which have been subtracted from retroactive child and spousal support as outlined in my additional reasons. The Respondent may set off this amount of costs from the outstanding award of retroactive child and spousal support made in this Court’s earlier endorsements.
Mr. Justice Pierre E. Roger
Released: September 1, 2017
CITATION: Gauthier v. Mallon, 2017 ONSC 5231
COURT FILE NO.: FC-11-2011
DATE: 2017/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michèle Gauthier
Applicant
– and –
Richard Andrew Mallon
Respondent
Costs Endorsement
Roger J.
Released: September 01, 2017