Court File and Parties
Court File No.: FS 18-0081 Date: 2018/11/29 Superior Court of Justice - Ontario
Re: Cheryl Lynn Angst, Applicant (Moving Party) And: Michael James Angst, Respondent (Responding Party)
Before: M. G. Ellies J.
Counsel: Melissa Young, for the Applicant William Abbott, for the Respondent
Heard: In writing
Endorsement on Costs
[1] In the motion at tab 10 of the continuing record, the applicant sought an order for monthly spousal support in the range of approximately $21,000 to $28,000. For reasons released on October 18, 2018 I ordered that the respondent pay temporary spousal support in the amount of $8,500 per month. I also ordered that, if the parties were unable to agree on the issue of costs, they could make written submissions. I have now received and reviewed those submissions.
[2] The applicant seeks costs in the amount of $4,470.85, all-inclusive, with respect to the motion. I am unable to determine from the materials filed, including the bill of costs, whether this represents costs on a full indemnity, substantial indemnity, or on a partial indemnity basis. In any case, the amount sought is not excessive.
[3] The applicant also asks that her costs be payable “in the cause”. I believe that the request for payment in cause is most likely a typographic error and that the applicant seeks costs “in any event of the cause”, as there is no basis set out in her materials upon which costs should be contingent on the outcome of the trial: Mark M. Orkin, The Law of Costs, loose-leaf (Rel. No. 73, Dec. 2017), 2d ed. (Toronto: Canada Law Book, 1987), at para. 105.1.
[4] In the alternative, the applicant submits that, if she is required to pay costs, those costs should be payable only in the cause.
[5] The respondent also seeks costs. He seeks costs on a substantial indemnity basis in the amount of $8,391, all-inclusive, for the motion and $500, all-inclusive, for the preparation of costs submissions.
[6] There is a presumption set out in r. 24(1) of the Family Law Rules, O. Reg. 114/99 that the successful party is entitled to the costs of a motion. Just as they were unable to do with respect to the relief sought in the motion itself, the parties are unable to agree on who was more successful. In my view, it was the applicant.
[7] While the applicant ended up with less than half of what she sought by way of monthly spousal support, she ended up with more than what she was getting when she brought the motion. In response to the motion, the respondent suggested that the motion either be dismissed or adjourned pending receipt of expert reports on the value of his business and on his income. Neither one of the respondent’s suggestions were adopted. Therefore, on balance, the applicant is the more successful party.
[8] Rule 24(5) provides that, notwithstanding the presumption in r. 24(1), a court may deprive a successful party of his or her costs or even order the successful party to pay costs where that party has behaved unreasonably. The applicant argues that the respondent has behaved unreasonably in the events leading up to and throughout the conduct of the motion. Given my conclusion that the applicant was the successful party, I need not consider these arguments as they relate to the payment of costs by her to the respondent. However, pursuant to r. 24(8), bad faith on the part of a party is still relevant to the quantum of costs that party is ordered to pay. As well, a party’s behaviour is also relevant under r. 24(12). That rule provides as follows:
In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matters.
[9] I do not accept any of the arguments of the applicant made in support of her submission that the respondent has been acting unreasonably or is guilty of bad faith. The applicant was not required to accept the applicant’s terms of the proposed separation agreement. The submission made on behalf of the respondent during the hearing of the motion that the business valuation and income reports would be available in about a month was not, in fact, wrong. The court file contains copies of draft reports dated October 29 and November 1, 2018.
[10] I do not think it is appropriate to rely on the fact that the parties were unable to agree on costs as a basis to argue bad faith. Nor do I agree that the fact that the support was paid one day late is any evidence of misbehaviour or bad faith.
[11] Rule 24(8)(a)(iii) also requires the court to consider whether offers to settle were made, even if those offers do not trigger the cost consequences set out in r. 18. Both parties made offers to settle, both of which badly missed the mark. The applicant offered to settle the motion for monthly spousal support payments of $15,000. The respondent submits that his offer came closer to the ultimate award. I find this difficult to accept. The respondent suggests that his offer was to pay an additional $5,000 per month. I do not interpret the offer that way. The respondent offered to adjourn the motion until after the release of the expert reports and to “pay to the applicant the uncharacterized amount of $5000 pending the release of the report[s] which will later be classified as either periodic spousal support, advance on equalization or [a] combination of the two.” I agree with the applicant’s submissions that this was an offer to make a one-time payment of $5,000. If the respondent intended to offer $5,000 per month, it would have been easy to say so.
[12] The passage of time has caused the respondent’s offer to fall further and further from the mark. My order for spousal support in the amount $8,500 per month was made on October 1. No other order has been made since then. Therefore, with each passing month, the one-time offer of $5,000 compares less and less favourably to the total amount of temporary support the respondent has been required to pay beyond the $5,000 he was paying at the time it was made.
[13] Ultimately, an award of costs should be fair and reasonable and should reflect what the unsuccessful party could reasonably expect to pay: Serra v. Serra, 2009 ONCA 395, at para. 12; Boucher v. Public Accountants Council (Ontario), 71 OR (3d) 291 (Ont. C.A.) at para. 26.
[14] Rule 24(6) provides that if success in a step in a case is divided, the court may apportion costs as appropriate. While, as I have held, the applicant was more successful than the respondent, she fell far short of her goal. Taking into account the factors referred to in r. 24(12) I conclude that the costs sought by the applicant, while not excessive, should be reduced to reflect how far off the result of the motion was from the expectations set out in her offer to settle and the submissions made on her behalf during the motion. Had the applicant been more reasonable in her approach to the quantum, the motion might not have had to proceed.
[15] In all the circumstances, I believe it is fair and reasonable to require the respondent to pay to the applicant her costs of the motion fixed in the amount of $3,500, all-inclusive, and I order him to pay those costs to her, forthwith.