COURT FILE NO.: 219/16
DATE: 2018/05/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lisa Ann Jeffrey
Applicant
– and –
Casey Adam McNab
Respondent
J. Singer, for the Applicant
D. Wowk and S. Yuen, for the Respondent
THE HONOURABLE JUSTICE j. r. hENDERSON
Costs endorsement
[1] The applicant (“Jeffrey”) and the respondent (“McNab”) both have made written submissions with respect to costs as a result of my written decision dated April 26, 2018.
[2] Both parties brought motions that were heard together over the course of two days. Jeffrey submits that she was the successful party on the two motions, and accordingly she requests her costs on a partial recovery basis until the date of her offer to settle and on a full recovery basis thereafter. McNab submits that there should be no costs because success on the motions was divided and because Jeffrey engaged in unreasonable conduct.
[3] The law regarding costs in family proceedings is set out in Rule 24 of the Family Law Rules. Rule 24(1) creates a presumption that a successful party is entitled to its costs. Where success is divided, the court may apportion costs pursuant to Rule 24(6). Rules 24(4), 24(5), and 24(11) direct the court to consider, among other things, the complexity of the issues, the importance of the issues to the parties, the reasonableness or unreasonableness of the parties’ behaviour, the lawyers’ rates, and the time properly spent on the case. Also, Rule 18(14) provides for costs consequences arising out of an offer to settle where certain conditions have been met.
[4] I find that Jeffrey was almost entirely successful with respect to the relief requested in her motion. She requested spousal support of $2,000 per month, payment by McNab of the household expenses of the NOTL property, a non-dissipation order, and disclosure from McNab as requested by her expert, Kalex Valuations Inc. I find that Jeffrey successfully obtained orders in accordance with those requests.
[5] The only unsuccessful aspect of Jeffrey’s motion was that Jeffrey was ordered to co-operate with McNab to renegotiate the mortgage on the NOTL property so as to increase the amortization period and thereby reduce the monthly mortgage payments, as requested by McNab.
[6] I find that McNab was partially successful on his motion. McNab successfully obtained an order that the NOTL property was to be listed for sale on or before August 1, 2018, and an order that Jeffrey was to make specific disclosure. However, McNab’s request for the sale of the Florida property was unsuccessful, and he was unsuccessful with respect to his request for an immediate sale of the NOTL property.
[7] Both parties made offers to settle. I find that neither party’s offer to settle engages Rule 18(4) of the Family Law Rules. The first four terms of Jeffrey’s offer to settle resemble the substantive relief that she achieved on her motion, but when the remaining terms are considered I find that Jeffrey did not achieve a result on the motions that was more favourable than her offer. In particular, Jeffrey’s offer to settle was conditional upon McNab paying certain fixed amounts for costs. Further, there were costs penalties in the offer if McNab wished to accept some, but not all, of the terms. Moreover, Jeffrey’s offer to settle did not address any of the issues raised in McNab’s motion.
[8] I find that McNab’s offer to settle was based on a proposed settlement that would have been more favourable to McNab than the result he achieved on the motions. Accordingly, Rule 18(14) does not apply to either party.
[9] In my opinion, the main issue in these motions was the spousal support issue. It was the most significant and complex issue, and involved the greatest amount of time. I find that Jeffrey was clearly the successful party on this issue. The other issues were not as complex and did not involve significant court time. For these reasons, even though Jeffrey was not entirely successful on all issues, I find that Jeffrey was the more successful party on the motions.
[10] McNab submits that Jeffrey behaved unreasonably because Jeffrey cancelled the mediation scheduled for March 2, 2017, and then failed to respond to McNab’s requests to reschedule the mediation. McNab also submits that Jeffrey unduly delayed these motions for over nine months because Jeffrey would not agree to an alternate date for the hearing of a long motion.
[11] In my view, McNab’s criticism of Jeffrey’s conduct is unwarranted. I accept that Jeffrey had a good reason to cancel the mediation because of McNab’s failure to provide proper disclosure. Once some disclosure had been made by McNab, there was a joint obligation on McNab and Jeffrey to proceed with the motions. Either party could have scheduled a date for a motion. Any delay was the responsibility of both parties.
[12] I accept that Jeffrey’s insistence that the matter proceed on a short motions list caused an unnecessary court attendance by McNab’s counsel on March 8, 2018. This is a factor that I will take into account in determining the quantum of costs.
[13] For all these reasons, I find that Jeffrey should be awarded some costs. Because Rule 18(14) does not apply, the scale of costs will be on a partial indemnity basis.
[14] Regarding the quantum of the costs, I accept that the issues before the court were important to the parties, that the dispute involved a significant amount of money, and that the financial issues were complex. I also find that the issues were further complicated by the fact that there had been incomplete disclosure with respect to McNab’s corporate finances.
[15] However, I must also consider the proportionality factor. The Bill of Costs submitted by counsel for Jeffrey shows total fees and disbursements of $71,635 on a substantial indemnity basis, and $53,440 on a partial indemnity basis. In my view, these amounts far exceed the fees that one would reasonably expect as costs of these motions. I accept that there were complications in these motions, and that there were a significant number of documents referenced on the motions. However, counsel for both parties were able to thoroughly address all issues and all relevant documents over the course of two days. The proportionality factor requires me to award costs in an amount that would be reasonably expected for these types of motions.
[16] Therefore, I assess the partial indemnity costs of Jeffrey by allowing a counsel fee of $5,000 for the two days of submissions in court, plus $5,000 for all preparation for the submissions. In addition, given the many affidavits and documents, and the cross-examinations on the affidavits, I will allow another $10,000 for all documentation, briefs, examinations, and file preparation. I will reduce this figure by $3,000 because of the unnecessary court appearance on March 8, 2018, and because of McNab’s partial success on his motion.
[17] Therefore, total partial indemnity costs are fixed at $17,000, plus HST of $2,210, plus disbursements of $1,555, for a total of $20,765. These costs are payable by McNab to Jeffrey on or before August 31, 2018.
J. R. Henderson J.
Released: May 28, 2018