Gillis v. Gillis, 2019 ONSC 382

COURT FILE NO.: FC-18-100

DATE: 2019/01/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyra Nicole Gillis

Applicant

– and –

Christopher Peter Gillis

Respondent

Jack Pantalone, Counsel for the Applicant

John Cardill, Counsel for the Respondent

HEARD: In Writing

ENDORSEMENT on Costs

Justice Engelking

1The Applicant brought a motion for interim financial relief, for which my endorsement was released on August 16, 2018. The parties were invited to provide written submissions on costs.

2Having considered the parties’ submissions, the bills of costs and the Family Law Rules¹, the court awards the applicant costs in the amount of $8,654.15, inclusive of HST and disbursements, payable within 30 days.

Positions of the Parties

3The Applicant seeks costs on a full recovery basis given that she was the successful party on the motion and that, prior to bringing her motion, she served two offers to settle on the Respondent which satisfy the requirements of s.18(14) of the Family Law Rules. The Applicant submits that she is presumptively entitled to costs on a full recovery basis from the date of the second offer, June 2, 2018. She seeks $10,213.55, inclusive of HST and disbursements.

4The Respondent does not dispute that the Applicant is entitled to costs as the more successful party on the motion, but he submits that the amount being requested by the Applicant is excessive, having regard to the issues before the court. The Respondent submits further that he was successful on the issue of the determination of his income by the court at $110,440.00, which was in turn reflective of the amount of child and spousal support payable. The Respondent submits that the only real issues for the motion were the small difference in the parties’ positions with respect to spousal support and the contribution to the carrying costs of the matrimonial home pending its sale.

The Law

5The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and ; (3) to discourage and sanction inappropriate behaviour by litigants.”² The new Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.³ Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.⁴ Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.⁵

Analysis

6The Applicant was the successful party on the motion and she is presumptively entitled to costs. She made an offer to settle on June 2, 2018 which provided for the Respondent to pay $997 per month in spousal support, $1592 per month in child support, 77% of section 7 expenses and a 25% contribution to the sharing of expenses for the home. The order on the motion provided for the Respondent to pay $1250 per month in spousal support, $1592 per month in child support, 80% of the section 7 expenses and for him to pay 50% of the house expenses pending the sale of the home. On every aspect of the motion, the order was as or more favourable to Ms. Gillis than was her offer. She is, therefore, presumptively entitled to her costs on a full recovery basis from the date of her offer pursuant to Rule 18(14).

7The Respondent made no formal offer to settle, though he did make three offers via correspondence, on May 31, 2018, June 20, 2018 and August 15, 2018, which the court may take into account pursuant to Rule 18(16).

8In the offer of May 31, 2018, the Respondent offered $1592 per month in child support, which is what the court ordered, as well as 75% of the children’s section 7 expenses. The Respondent also offered spousal support of $965 per month. The Respondent notes that while the court ordered $1250 per month in spousal support, the Applicant was seeking high end SSAG support on an income for the Respondent of $113,915, which she was not successful in obtaining at the motion.

9In his offer of June 20, 2018, the Respondent offered to pay $968 per month in spousal support on an income of $17,175 for the Applicant and $110,440 for him, and 77% of the section 7 expenses.

10The Respondent’s offer of August 15, 2018, was a comprehensive one in respect of the whole application and not the motion itself, and is not therefore pertinent to the costs on the motion.

11The Respondent provided a bill of costs which demonstrate that his costs on the motion were $4,531.30, inclusive of HST.

12The matters at issue in the motion, particularly interim spousal support and contribution to house expenses, were not complex, but they were important to the parties. The Applicant submits that some research was required in regards to the discretionary issue of a non-occupying spouse’s obligation to contribute towards expenses related to the matrimonial home.

13Neither party behaved unreasonably within the meaning of Rule 24(12).

14I find that the lawyer’s rates and the disbursements paid are appropriate. With respect to time spent on the motion, given that the Applicant was the moving party and had a right of reply, it is logical that her counsel’s time spent on the file would be higher than that of the Respondent’s counsel. That it would be 8.45 hours higher (22.45 hours versus 14 hours) may be excessive. I find that five hours more spent on the motion by the Applicant’s counsel than by the Respondent’s is reasonable. I would accordingly reduce the number of hours billed by the Applicant’s lawyer from 22.45 to 19 hours.

15Notwithstanding the Respondent’s offers, the outcome of the motion was as or more favourable to the Applicant than was her offer of June 2, 2018, and I find that she is entitled to full recovery costs amended as set out in paragraph 14.

Order

16My order is as follows:

1. The Respondent shall pay the Applicant $8654.15, inclusive of disbursements and HST;

2. This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.

Engelking J.

Footnotes

1. 1O. Reg. 114/99, as am.
2. 2Mattina v. Mattina, 2018 ONCA 867, paragraph 10
3. 3Rule 24(12), Family Law Rules, O.Reg. 114/99, as am.
4. 4Ibid.
5. 5A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.