Busko v. Israel, 2019 ONSC 52

COURT FILE NO.: 51925-16

DATE: 2019-01-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER BUSKO

Applicant

– and –

BLAIR ISRAEL

Respondent

Applicant appearing in person

Glenda D. McLeod, Counsel for the Respondent

HEARD: December 20, 2018

The Honourable Mr. Justice D.J. Gordon

Supplementary Endorsement re: Costs

[1]

Background

In my reasons for decision (2018 ONSC 5842), released October 9, 2018, I invited written submissions on the issue of costs, granting Ms. Busko the option to request a hearing. Ms. McLeod delivered written submissions dated November 8, 2018. Ms. Busko requested a hearing for oral submissions. Such was scheduled for December 20, 2018. On the return date, Ms. Busko delivered written submissions. Brief oral submissions were also presented.

2My reasons for decision addressed the issues at trial, namely parenting, child support, spousal support, equalization of net family properties and occupation rent. There was mixed success at trial, however, the respondent accomplished more than the applicant having regard to positions taken on the issues.

3During the trial, I was of the view the issues were resolvable. I remain of that opinion. This was an unnecessary trial that occurred for a number of reasons.

[4]

Conduct of the Parties and Complexity of Issues

Ms. Busko was originally represented by counsel. She then qualified for Legal Aid. Such changed, no doubt as a result of obtaining full time employment at Canada Post. Ms. Busko could not afford to privately retain a lawyer and has represented herself in this case since April 2018. While she was able to present most of her evidence and articulate a position on the issues, it was clear that representation would have been beneficial. Ms. Busko appeared to not understand certain matters as to admissibility of evidence, in particular, and applicable legal principles.

5Although there were a number of issues at trial, the primary matters were parenting and property. Both could have been resolved with greater effort.

6At the case conference, on February 1, 2017, a consent order was granted requesting the Children’s Lawyer involvement. Unfortunately, this request was denied. The parties did not consider retaining another service provider to ascertain the views and preferences of the children. In result, there was limited evidence at trial from the children’s perspective. Had the parties jointly retained a lawyer or social worker for this purpose, I expect the parenting issue could have been resolved. It is of some significance that the parties did reach a temporary agreement in May 2016 with the assistance of social workers at Family and Children’s Services. A nesting arrangement was put in place but such was discontinued in September 2016.

7Further, while there were some disputes on parenting, this was not a high conflict case. There was sufficient communication to allow most parenting decisions to be made together.

8The property issue was not complex. The main dispute was with the value of the matrimonial home, owned by the respondent. The applicant was given the opportunity to obtain an appraisal, addressed at the case conference on February 1, 2017 and at the trial management conference on May 11, 2018. She waited too long, delivering a report at trial. I allowed her additional time to call her appraiser as a witness. Such did not occur.

9The applicant’s claim for occupation rent was dismissed for lack of jurisdiction.

10Overall, the property issue simply involved a calculation regarding assets and debts. Further effort would have resolved this issue.

[11]

Offers to Settle

The parties exchanged offers to settle. The applicant’s offers were dated August 12, 2016 and August 24, 2018. The respondent’s offers were dated August 14, 2017 and July 26, 2018. While there were some differences in each party’s offers, the essential positions were:

(a) by the applicant

• sole custody to her, continue access as was occurring

• respondent to pay full guideline child support plus spousal support for five years

• respondent to pay $195,000 to equalize net family properties

(b) by the respondent

• shared custody on week about schedule

• he would pay offset child support

• no spousal support

• he would pay $67,197 to equalize net family properties.

12At trial, both parties agreed the oldest child would decide the respondent’s parenting time. The dispute pertained to the younger two children. Child support followed the parenting decision. The applicant reduced her spousal support claim to three years, the respondent in closing submissions addressing a lump sum in the alternative to his no support position. The basis of the applicant’s property position was never clear, a net family property statement not being presented. There were other minor concessions by both parties, more so by the respondent.

13Having regard to their positions, the respondent was more successful on the parenting and property issues. The applicant, to some extent, with spousal support.

[14]

Entitlement and Quantum of Costs

The respondent seeks a cost award of $25,000, inclusive. Ms. McLeod reports her client’s total expense to be $55,373.28, that partial indemnity costs would be $34,305.53. Ms. Busko has calculated her costs since April 2018 to be $18,252.15. She suggests each party be responsible for their own costs.

15The respondent, in my view, is clearly entitled to some award of costs. Both parties, however, must accept responsibility for the delay in this case reaching trial and the failure to consider other methods to resolve issues as previously discussed. Hence, I conclude the cost award should be limited to the actual trial. While there were some discussions in the submissions regarding the applicant’s ability to pay a cost award, I do not consider such to be relevant.

16Having regard to the Bill of Costs presented by Ms. McLeod, I consider the respondent’s expense for preparation and attendance at trial to be approximately $22,500, plus HST of $2,925, for a total of $25,425. He is entitled to a reduced partial indemnity award, given that the applicant had some success at trial, but less than the respondent.

[17]

Disposition

In result, costs are awarded to the respondent, fixed in the amount of $12,750, inclusive of HST and disbursements.

D.J. Gordon J.