Court File and Parties
COURT FILE NO.: 12160/13
DATE: 2019-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Lynn Segeren Applicant
– and –
Gary John Segeren Respondent
COUNSEL:
William R. Clayton, for the Applicant
Jonathan M. Quaglia, for the Respondent
HEARD: Written submissions
Ruling on Costs
Carey J.:
[1] This family dispute involved issues of spousal support, equalization and division of property. There were no issues relating to custody or access as their children are independent.
[2] The respondent husband says he was entirely successful and as a result of an offer made substantially prior to trial, he should receive a large portion of the costs as full indemnity costs. His total figure for fees, disbursements and HST is $98,648.79.
[3] Not surprisingly, Mrs. Segeren’s position is markedly different. Relying on rules 18 and 24 of the Family Law Rules, O. Reg. 114/99, and the decision of Pazaratz J. in Chomos v. Hamilton, 2016 ONSC 6232, emphasizes the “reasonableness” of the party’s position is as important to a determination of costs as “success”. She proposes a costs award all inclusive of $35,000 would reflect the principles in the rule as elucidated by Pazaratz J. in the Chomos decision.
[4] In my view, costs decisions should be both timely and succinct. Since I have failed to achieve the former already, I will make the latter my goal.
[5] The decision in Chomos is lengthy but thorough. I agree with Pazaratz J.’s approach and it is not necessary to quote from its reasoning. It is attached to the cost submissions of the applicant. Likewise, I need not quote from the costs submissions of the applicant which naturally both parties are in possession of.
[6] I agree with the applicant that costs should be payable to the respondent but only on a partial indemnity basis. The applicant’s position regarding imputing income at a rate similar to previous years’ earnings of the respondent after age 55 was not a patently unreasonable one. She is right that it was arguable in that the decision was based on disputed facts. She is also correct that the respondent’s offer as in Chomos was not a true rule 18(14) offer. The applicant is also correct that she was successful in recovering an order that was more valuable to her than the respondent’s offer to settle including the equalization of net family property award and the support order. I do not find that she acted unreasonably in seeking an adjournment of the trial pending obtaining an expert report that she did not rely upon. In my view, she was not required to do so. I agree with her that her offer to settle did acknowledge the voluntary support payments made by the respondent to her or third parties on her behalf. Likewise, mediation is not mandatory and there was, in this case, no obligation to participate in mediation.
[7] The respondent was successful but given the income of the two parties, the ultimate decision as well as the length of the trial, I do not accept the respondent’s proposal of nearly $100,000 in costs as appropriate or necessary. The Chomos litigation was longer at trial and contained some serious issues regarding the future of children, that were absent here. The judgment was 175 paragraphs. That case was heard in the Unified Family Court in Hamilton; like Chatham, outside of metropolitan Toronto. In the Chomos case, the costs award was fixed at $32,000 inclusive of HST and disbursements.
[8] However, it is important to note that the custodial aspect of the argument in that case weighed heavily in the determination of the amount that was reasonable. Relying on MacDonald v. Magel, 2008 CanLII 36161 (ON SC) and Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] 20 R.F.L. (5th) 284, the court noted “a large costs order against an unsuccessful party may affect their ability to provide for a child in their care. But inadequate reimbursement for costs may similarly impoverish a child residing in the successful party’s household.” Those considerations are not present here.
[9] As well, I note that counsel for the applicants own bill of costs on a partial indemnity basis was $53,045.28, inclusive of HST.
[10] Having carefully considered the submissions of both sides and having reviewed the bill of costs of the successful respondent, I fix costs inclusive of disbursements and HST at $50,000.
Original signed by Justice Thomas J. Carey
Thomas J. Carey
Justice
Released: September 17, 2019
COURT FILE NO.: 12160/13
DATE: 2019-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michelle Lynn Segeren Applicant
– and –
Gary John Segeren Respondent
Ruling on costs
Carey J.
Released: September 17, 2019