CITATION: McInnis v. McInnis, 2017 ONSC 5421

COURT FILE NO.: F1357/15

DATE: September 13, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: John Turnbull McInnis, applicant

AND:

Rose Marie McInnis, respondent

BEFORE: MITROW J.

COUNSEL: Mark Coulston for the applicant

Michael H. Murray for the respondent

HEARD: written submissions filed

ENDORSEMENT on costs

[1] I have reviewed the parties’ written costs submissions received pursuant to my order dated June 27, 2017 requiring the matrimonial home to be sold, which was the relief sought by the applicant on his motion. The respondent also had brought a motion, and some other relief was claimed in the applicant’s motion, but the argument and the material centred on the sale of the matrimonial home.

[2] The applicant was successful, and presumptively, he is entitled to costs. The respondent opposed the applicant’s motion to sell the matrimonial home.

[3] The applicant seeks costs on a “substantial indemnity” basis in the amount of $14,976.46 all inclusive. The applicant, for comparative purposes, also has provided his costs on a “partial indemnity” basis.

[4] It must be remembered that “substantial indemnity” and “partial indemnity” are terms used to describe costs in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and those terms do not apply to the Family Law Rules, O. Reg. 114/99. There is no specific counterpart to “partial indemnity” in the Family Law Rules; however, the Family Law Rules do refer, for example, to “full recovery of costs” and “costs on a full recovery basis” in rules 18(14) and 24(8), respectively. The reference to “full recovery” may be somewhat analogous to “substantial indemnity.”

[5] The respondent submits, relying on her offer, that each party should bear his or her own costs and, if the respondent is ordered to pay costs, that those costs be offset against any equalization payment owing to the respondent.

[6] I have considered the relevant factors in r. 24(11). The issue was important but not particularly complex. The applicant’s counsel has included a costs outline. The hourly rate of $325 is very reasonable and on the modest range given the seniority of applicant’s counsel. There is no apparent dispute regarding the applicant’s modest disbursements.

[7] The respondent did serve an offer five days prior to the motions being heard. Although in her offer the respondent agreed to the sale of the matrimonial home, other portions of that offer eroded substantially the respondent’s concession to a sale, the most substantive of which was a condition giving the respondent a right of first refusal. This condition could pose a practical hurdle to listing and successfully selling the matrimonial home – it was an attempt by the respondent to “have her cake and eat it too.” The jurisprudence does not reserve to a joint tenant a right of first refusal on a sale pursuant to the Partition Act.

[8] There is no basis for the respondent’s submission that her offer was “better” than the order. The respondent’s offer does not meet condition 5 in r. 18(14).

[9] However, the respondent still is commended for making an offer. There was no reference in the submissions as to any offers made by the applicant, so I proceed on the basis that none were made.

[10] On more than one occasion, I have stated that in family law matters, it is important to make offers and to make them often.[^1] In Potter v. Da Silva, [2014] O.J. No. 4187 (Ont. C.J.), at para. 22, R. Zisman J. was of the view that it is unreasonable behaviour for a party not to make an offer.

[11] In deciding whether a party has behaved reasonably or unreasonably, the court is required to consider whether a party has made an offer: r. 24(5)(a).

[12] I find in the circumstances that it was unreasonable for the applicant to fail to make an offer and that there should be some consequent reduction in costs.

[13] Taking into account the foregoing, r. 24(4) and that the overriding principle in assessing costs is reasonableness, the applicant shall have his costs which are fixed in the amount of $7,000 inclusive of assessable disbursements and HST.

[14] The costs are payable by the respondent when the issue of the equalization payment has been determined on a final basis, and the costs may be set-off against any equalization payment owing by the applicant to the respondent.

[15] So ordered.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: September 13, 2017

[^1]: See: Furtney v. Furtney, 2014 ONSC 7259, at para. 7; Sinibaldi v. Sinibaldi, 2011 ONSC 4242, at para. 19; and Reati v. Racz, 2016 ONSC 3769, at para. 13.