COURT FILE NO.: FS-17-00416233
DATE: 201806013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Elizabeth Gallivan
Applicant
– and –
Ronald Charles Rodgers
Respondent
Melanie A. Larock, for the Applicant
Appearing on his own behalf
HEARD: March 19-23, 27-29, 2018
JUDGMENT RELEASED: May 9, 2018
C. gilmore, J.
Ruling on costs
OVERVIEW
This trial was heard over eight days in March 2018. The parties were requested to provide written costs submissions which have now been received.
The applicant was mostly successful on the parenting and support issues although the result did not exactly mirror her Offers to Settle.
The applicant claims costs of $169,587.12 (full indemnity) or alternatively $134,930.41 (partial indemnity). She also seeks a financial sanction of $10,000 as per her motion brought at the commencement of trial.
The respondent submits that the applicant had only partial success at trial with the respondent being successful on the issue of access. On balance, he agrees that the applicant should have some costs but only 1/3 of the costs claimed.
The trial judgment required that $100,000 of the respondent’s house sale proceeds be retained in trust pending the costs decision in this matter.
THE PARTIES’ POSITIONS
The respondent submits he was successful on the issue of access as he requested equal time with Tierney. He concedes that while the court ordered equal time, it was not the schedule he had proposed.
The respondent resists paying any costs for the July 25, 2017 motion as his position was that Tierney’s enrolment at John G. Althouse School was a “fait accompli” and the applicant’s motion was therefore a waste of time.
The respondent also resists paying the balance of Mr. Hurwitz’s fees claiming that there was a duplication in billing for which he should not be responsible.
The respondent submitted that the parties generally took no issue with the recommendations in the assessor’s report and that most of the evidence centred around custody and access. As the applicant was successful on the custody issue and the respondent on access, the parties’ success on those issues was divided.
The applicant’s position may be summarized as follows:
a. The fact that the applicant’s success was somewhat less than she sought at trial (in terms of the access) should not preclude her from recovering her costs.
b. So long as a party has behaved reasonably and the costs sought are proportional, a successful party is entitled to costs generally approaching full recovery.
c. The applicant made four Offers to Settle. The Offers were closer to the actual result than the Offers made by the respondent.
d. The respondent must pay the outstanding balance to Mr. Hurwitz of $1809.73. Given that his challenges to the assessment report were not successful, the cost of the report should be reapportioned such that the respondent should pay 75% of Mr. Hurwitz’s fees.
ANALYSIS AND ORDERS
The Offers to Settle
The applicant served four Offers to Settle. The first Offer, dated September 27, 2017, proposed that the parties adopt the recommendations in the assessment report and that each party pay their own costs. There does not appear to be any disagreement that the applicant was only partially successful with respect to this Offer because she was successful on the issue of custody but not on the issue of the final parenting schedule.
The second Offer, dated January 11, 2018, offered to dismiss the respondent’s claim for spousal support without costs. The applicant was entirely successful as the respondent’s claim for spousal support was dismissed entirely including any claims for arrears. The applicant requests her full recovery costs on this issue after January 11, 2018 and partial recovery costs prior to January 11, 2018.
The applicant’s third Offer, dated March 5, 2018, proposed to impute income to the respondent of $90,000 per annum with no retroactive support payable by either party. The trial judgment did not require payment of retroactive support by either party and imputed income of $99,154.45 to the respondent. The applicant had complete success with respect to this Offer as well because the respondent’s position had always been that his income was only $20,000 a year.
The applicant’s final Offer, dated March 8, 2018 offered to settle six substantive issues. All issues in the Offer were severable. That Offer included a provision that the applicant pay the respondent the sum of $10,000 for all arrears of child support and any past, future spousal support. It also proposed to impute income to the respondent in the amount of $75,000 per year and adopt all the recommendations of the assessment report. Again, the applicant was clearly successful on all issues except for the specifics of the parenting schedule.
The respondent served two Offers to Settle. The first Offer, dated October 19, 2017, offered to withdraw his claim for spousal support and maintain the access schedule in the April 2017 consent order. The provisions were not severable.
The respondent’s second Offer to Settle, dated March 8, 2018 sought spousal support payments of $32,389 and retroactive child support payments of $15,973. The respondent was unsuccessful on these issues.
The respondent cannot insulate himself from the effects of not accepting the applicant’s reasonable offers, and in particular the severable Offer of March 8, 2018. Even if the respondent did not agree with the recommendations of the assessor, the trial could have been shortened had the remaining issues been resolved. In short, his position on the issues of ongoing and retroactive child and spousal support was unreasonable.
Rule 24 Considerations
I find that the applicant behaved reasonably with respect to both the Offers she made and her position at trial. As such, she should have her costs. The issue to determine is quantum.
In terms of quantifying her success, the applicant was successful on the issues of spousal support, child support, s.7 expenses and custody. She had partial success with respect to the parenting plan. However, it must be noted that neither party had complete success in this area. The court did not follow the assessor’s recommendations to the letter with respect to parenting time or vacations. Rather, the court was guided by what the child wanted (more continuous time with each parent) and ensuring a reduction in conflict (no interference with either parent’s time by the other parent).
While the respondent did serve Offers to Settle, I find that his position on support, both child and spousal, was untenable given his attempt to portray his income at an unreasonably low level. The time spent on these issues, albeit less than the custody/access issues, should have been avoided entirely in my view.
The respondent suggests that because of what he characterizes as divided success on the access issues, that he should only pay one-third of the applicant’s costs. I respectfully disagree. The applicant’s success was proportionally far greater than any success the respondent may have had on the parenting schedule. Further, the respondent’s Offers did not assist in any way. Conversely, had the applicant’s Offers been accepted, even in part, the trial time may have been considerably reduced or not required at all.
I do not find that the issues in this case were the most complex but they were of critical importance to the parties. Both of the parties’ lives were, in large part, centred around Tierney and the result of the trial was of fundamental importance to them.
Other Issues
I am concerned about the impact of some of the respondent’s actions on the issue of costs. For example, it is immaterial that Mr. Hurwitz chose not to attend the trial other than for his own evidence. The fact is that he should have been afforded the opportunity to be there and observe had he wished to do so. As both parties had the opportunity to cross-examine Mr. Hurwitz, and given his already in-depth knowledge of the issues, the respondent’s objection to his presence was misplaced.
I do not agree with the respondent concerning the July 25, 2017 motion. This issue was addressed in the trial judgment at paragraphs 84 and 85. It is not clear how the applicant could have known that the respondent “acquiesced” to Tierney attending John G. Althouse school when he had an outstanding cross-motion to request that she attend Lambton-Kingsway. Costs of that motion should be paid by the respondent.
I have reviewed Mr. Hurwitz’s email dated June 4, 2018 and it is clear that there remains an outstanding amount owing to him by the respondent. This should be paid immediately.
While the respondent was not successful in his challenge of the s.30 assessment, his challenges were well articulated and not entirely baseless. A reapportionment of the assessment fees is not warranted in this case.
The applicant seeks a financial sanction in relation to her motion brought at the outset of trial. She sought to strike the respondent’s pleadings due to his non-payment of previously ordered costs, his failure to pay his required share of the assessor’s fees and his failure to produce certain disclosure.
While the respondent claimed to have already produced the disclosure, he could not provide proof of this. Ultimately, the disclosure was provided as the trial was commencing.
The respondent was unable to adequately explain his failure to pay the assessor or court ordered costs. Shockingly, he insisted that the applicant reconcile section 7 expenses and pay him his share while refusing to off-set any of the court costs owed to her. The respondent’s submission that he did not have the capital to pay the court costs was not borne out by his sworn financial statements.
While I will not award the sanction sought by the applicant, she should have her costs of the pre-trial motion on a full recovery basis.
The applicant seeks reimbursement for her share of Mr. Hurwitz’s fees. While I will allow all of the Thomson, Rogers disbursements, I do not allow any further adjustment of Mr. Hurwitz’s fees given the somewhat divided success on the issue of parenting time.
Overall, I find that the applicant’s trial success and Offers to Settle when balanced with her partial success should result in an amount of costs that represents a middle ground between full and partial indemnity costs or 75% other than the pre-trial motion which should be reimbursed on a full recovery basis. The costs should be calculated as follows:
a. Fees – February 17, 2017 to June 11, 2017 $12,850.21
b. Fees – June 12, 2017 to August 31, 2017 1,966.20
c. July 25, 2017 motion 12,420.11
d. Fees – September 1, 2017 to December 31, 2017 6,013.01
e. Settlement Conferences – December 8 and 18, 2017 7,724.49
f. Trial Prep – January 1 to March 18, 2018 58,079.17
g. February 20, 2018 motion (costs fixed by Stevenson, J.) 4,000.00
h. Pre-trial Motion at full recovery 4,844.87
i. Trial fees 37,290.00
j. March 30, 2018 to date 4,426.06
k. Disbursements 10,123.41
Total $159,737.53
Less 10% for equalization costs (each to bear their own) -15,973.75
Total Costs Payable $143,763.78
Final Orders
The respondent shall pay the applicant’s costs in the amount of $143,763.78 inclusive of disbursements and HST.
The $100,000 held back from the respondent’s share of house sale proceeds shall be immediately delivered to the applicant in partial satisfaction for the costs owing. The balance of $43,763.78 to be paid to the applicant by the respondent within 60 days of the date of this ruling.
The respondent to immediately pay the sum of $1,809.73 to Mr. Howard Hurwitz in final satisfaction of his share of the assessment account.
C. Gilmore, J.
Released: June 13, 2018
COURT FILE NO.: FS-17-00416233
DATE: 20180613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Elizabeth Gallivan
Appellant
– and –
Ronald Charles Rodgers
Respondent
RULING ON COSTS
C. Gilmore, J
Released: June 13, 2018