CITATION: M.D. v. A.C., 2017 ONSC 7722
OTTAWA COURT FILE NO.: FC-13-1462
DATE: 2017/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.D.
Applicant
– and –
A.C.
Respondent
Self-represented
David Sinclair, for the Respondent
HEARD: September 22, 23, 26 and 27, 2017
Decision on Costs
Justice Engelking
[1] A trial of the single, narrow issue of the validity of the parties’ marriage contract entered into on September 1, 2005, was held from September 22 to 27, 2017. M.D.’s position was that the marriage contract was not valid. A.C. argued that it was. At the end of the trial, I found that the contract was a valid marriage contract and I dismissed M.D.’s application to set it aside.
[2] The parties were invited to make submissions on costs in the event that no agreement could be reached. Both provided written submissions on November 6, 2017. This is my decision regarding same.
Applicable Law on Costs
[3] Rule 24(11) of the Family Law Rules outlines that the Court shall take into consideration the following factors in setting an amount for costs: the importance, complexity or difficulty of the issues; the reasonableness or not of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; and, any other relevant matter.
[4] In determining the reasonableness or unreasonableness of a party, pursuant to Rule 24(5) the Court is to examine the party’s behaviour in relation to the issues from the time they arose; the reasonableness of any offer to settle; and, any offer the party withdrew or failed to accept.
[5] Rule 18(14) dictates that a party is entitled to cost from the date of an offer on a full recovery basis if the criteria contained therein are met.
[6] The Court still has discretion to ensure that costs are fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of any case as per Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA) at para 26.
Analysis
[7] As the entirely successful party on the trial, A.C. is entitled to an order of costs. She seeks an order of $55,371.53 based on the fact that she was the successful party, the issue of the validity of the marriage contract was one of great importance to the parties, and she made an offer to settle on January 12, 2017 which was more favourable to M.D. than was the outcome of the trial.
[8] A.C. served an offer to settle on January 12, 2017, which met all of the criteria contained in Rule 18(14) of the Family Law Rules. In it, she offered that the parties consent to an order stating that the Marriage Contract was valid and that A.C. pay to M.D. $20,000, with all other issues reserved to further court order or agreement. M.D. did not accept the offer, nor did he present any Rule 18(14) compliant offer of his own.
[9] According to that Rule, A.C. would thus be entitled to her costs at a full recovery basis from the date of the offer, which is what she seeks.
[10] M.D. submits that he is in an untenable situation financially, and it was based on precisely this reason, his financial need, that he sought to have the marriage contract set aside. M.D. submits, moreover, that the declaration of validity of the marriage contract should be payment enough for A.C., as it results in her substantial net worth being unencumbered by him. He states that in the event he is required to pay costs, he is unable to so to the extent requested by A.C. and that his debt situation would prohibit him paying more than $20,000.
[11] The court has noted at paragraph 12 of Chomos v. Hamilton, 2016 ONSC 6232, that the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v. Selznick 2013 ONCA 35, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 36447 (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray (2005) 2005 46626 (ON CA), 2005 46626 (Ont. C.A.); Guertin v. Guertin 2015 ONSC 5498, 2015 ONSC 5498 (SCJ).
[12] But for the existence of the offer to settle of January 12, 2017, I would be very sympathetic to M.D.’s situation. However, he made the choice to continue with this litigation in the face of that offer, at significant risk to himself. Having regard to his limited means, and applying the principle that the court can fix costs that are fair and reasonable in the particular circumstances of the case, I am prepared to fix costs in the amount of $40,000 inclusive of HST and disbursements.
Order
[13] My order shall be as follows:
(1) The Applicant, M.D. shall pay to the Respondent, A.C., costs in the amount of $40,000 inclusive of HST and disbursements;
(2) Such costs award shall be paid to the Respondent from the Applicant’s share of the proceeds of sale of their joint rental property currently being held in trust by Order of Justice McNamara dated May 16, 2017;
(3) The shortfall, if any, shall be paid directly to the Respondent by the Applicant personally and forthwith.
(4) This order bears interest at the rate of percent per annum.
Madam Justice Tracy Engelking
Released: December 27, 2017
CITATION: M.D. v. A.C., 2017 ONSC 7722
OTTAWA COURT FILE NO.: FC-13-1462
DATE: 2017/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.D.
Applicant
– and –
A.C.
Respondent
decision on costs
ENGELKING J.
Released: December 27, 2017