Court File and Parties

COURT FILE NO.: FS-16-967

DATE: 2018-06-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.M.C.

Applicant

– and –

A.M.F.

Respondent

COUNSEL:

Barry T. Paquette, for the Applicant

Brian R. Kelly, for the Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

Supplementary Endorsement Re: Costs

[1] In my reasons for decision, released May 2, 2018, I invited written submissions from counsel on the issue of costs. G.M.C. was successful at trial and, hence, is entitled to a cost award. The issues involved resulting trust and unjust enrichment pertaining to the family residence of unmarried spouses, title having been taken as joint tenants. The issues were compounded by the real estate solicitor involved in the purchase, the evidence at trial indicating he did not discuss title options, explain the full meaning of joint tenancy nor inquire as to the intentions of the parties having regard to their unequal contributions.

[2] G.M.C. delivered an offer to settle on September 29, 2017. He was more successful at trial, thus triggering the provisions of Rule 18(14), Family Law Rules.

[3] Mr. Paquette, on behalf of G.M.C., now seeks a cost award of $36,556.92. Mr. Kelly, for A.M.F., takes no issue with the time spent and the hourly rates. He refers to the problem regarding the real estate solicitor, who also initially acted for A.M.F. in this case despite the obvious conflict of interest. Mr. Kelly also reports as to his client’s offer to settle, delivered on September 29, 2017 and, although not a rule 18(14) situation, identifies it as representing a reasonable attempt. Mr. Kelly proposes a cost award in favour of G.M.C. at 85 per cent of reported fees, namely $30,780.18, presumably plus disbursements.

[4] I conclude that G.M.C. is entitled to a cost award of $36,556.92, as requested. The claim for costs is in accord with Rule 18(14) and there is no reason a discount should be made. I also note that the time spent on this case by Mr. Paquette is more than reasonable and that his hourly rate is less than other lawyers with his experience.

[5] Issues pertaining to the real estate solicitor ought to have been addressed before trial or in a separate proceeding or by adding him as a party in this case. There may yet be time for such a claim against him.

[6] In result, costs are awarded to the applicant, G.M.C., fixed in the amount of $36,556.92, inclusive of disbursements and HST.

D.J. Gordon J.

Released: June 7, 2018