Court File and Parties

NEWMARKET COURT FILE NO.: FC-09-33597-00 DATE: 2019-11-18 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Dane Mugford, Applicant -and- Yvonne Mugford (Silva), Respondent

BEFORE: The Honourable Madam Justice S.E. Healey

COUNSEL: Heather Saunders, for the Applicant Yvonne Mugford (Silva), Respondent, Self-Represented

HEARD: In Writing

REASONS FOR DECISION ON COSTS

[1] This costs decision is with respect to the parties’ motions to change. The judgment following trial shows that the results were mixed (Mugford v. Mugford, 2019 ONSC 5623).

[2] Both parties exchanged offers to settle months prior to the first day of trial. This costs decision turns on whether either party has established that the trial ruling was at least as favourable as their offer.

[3] The issues requiring trial were: entitlement/quantum/duration of spousal support; ongoing and retroactive child support; termination of child support; retroactive s. 7 expenses; sharing of post-secondary expenses; financial disclosure; and enforcement of orders made 10 years ago for an equalization payment, interest, costs and releases.

[4] While each party can be characterized as taking rigid positions on some of the issues in the litigation - for example, Mr. Mugford with respect to spousal support and imputation of income to Ms. Silva, and Ms. Silva with respect to imputation of income to Mr. Mugford for the purpose of calculating retroactive child support - I would not characterize either party’s behaviour in relation to the issues as unreasonable. “Unreasonableness” in my mind must always be judged in the entire context of the case and each party’s behaviour in relation to that of the other and to external factors. In this case, so many factors over the course of the 14 years following separation informed each party’s perspective in the litigation that applying the adjective “unreasonable” does a disservice to these litigants.

[5] Both offers reflect a genuine attempt to avoid a trial.

[6] The trial outcome did not meet or exceed Mr. Mugford’s offer in a number of areas, but most importantly spousal support. Spousal support was a non-severable term of Mr. Mugford’s offer. The court ordered ongoing periodic spousal support in the amount of $1,818 commencing September 1, 2019, with no retroactive adjustment. Mr. Mugford’s offer sought to terminate support as of November 1, 2018, following which he would pay a lump sum, tax-free amount of $26,000 to cover four years of support. That lump sum is the equivalent of periodic monthly support in the amount of $541.66 (after tax) to December 2022.

[7] On a more global perspective, Mr. Mugford offered a total sum of $74,000 to Ms. Silva for satisfaction of all retroactive child support, medical and other s. 7 expenses and lump-sum spousal support, less the equalization payment and costs owed to him. Taking out the lump sum spousal support of $26,000, Mr. Mugford was offering $48,000. The court ordered him to pay $47,405.50 for these same items. Unfortunately, this aspect of Mr. Mugford’s offer was not severable from its other terms. Had it been, Ms. Silva might have been in a position to accept the global sum to resolve all issues except for spousal support. Further, the offer does not permit the spousal support offer to be severed from the remainder of its terms, so it was a “package deal only” on the most significant trial issues.

[8] Turning to Ms. Silva’s offer, it was severable on all financial issues. On the issue of spousal support, Ms. Silva offered a lump sum settlement for all retroactive and prospective support in the amount of $32,732. This was to be non-taxable and non-deductible, representing a mid-point after tax lump sum figure utilizing Mr. Mugford’s income of $127,332 and an imputed income by Ms. Silva of $15,000, for a duration of five years. Again, the court ordered non-time limited support in the amount of $1,818 per month. The requirement that Mr. Mugford provide security through life insurance until age 65 reflects the expectation of the court that spousal support will likely be paid for much longer than five years. No income was imputed by the court to Ms. Silva, who was found to be medically incapable of securing a job.

[9] The issue of spousal support took the greatest amount of trial time, as even entitlement was contested.

[10] On balance, a comparison of the offers persuades me that Ms. Silva should recover some of her costs primarily because of the way spousal support was handled by each in his or her offer. This award will be reduced as a result of Mr. Mugford’s positive conduct in this proceeding, which ultimately brought the matter to trial for a final determination, even while knowing that he would owe Ms. Silva retroactive child support. He booked all of the settlement conferences and moved to set aside an administrative dismissal. Even during the lengthy process, he continued to pay all periodic support required by the final order, even when it was apparent that it should terminate. For example, the eldest child had graduated from university and had been self-supporting for four years before the trial began. He continued to pay support as ordered even though he had not received the equalization payment or costs that were owed to him.

[11] Ms. Silva has submitted a Bill of Costs which attaches invoices from two lawyers. The first invoice relates to preparation and attendance at a settlement conference held in 2011. I have no grounds upon which to award costs for a settlement conference occurring eight years prior to trial and, accordingly, disallow recovery of this portion of the costs sought by Ms. Silva.

[12] The invoices for the subsequent lawyer, Rachel Radley, relate to services rendered from June 19, 2018 to November 22, 2018. The legal services include preparation of Ms. Silva’s comprehensive settlement offer dated August 15, 2018, which is now under consideration. These invoices total $9,522.76. Given the number of issues presented to Ms. Radley in this case, and the litigation’s longevity, this amount cannot be found to be excessive.

[13] Ms. Silva also seeks disbursements; photocopies at $0.10 each - $460; gas for serving and filing documents - $250; filing fees - $280; and HST on the above amounts - $128.70, totalling $1,118.70. I infer that the expense related to service and filing is a “guestimate” and note an absence of back up documentation, but the amount overall is far less than would have been paid to a commercial process server.

[14] The amount of Ms. Radley’s invoices plus the disbursements totals $10,641.46. Discounting this for Mr. Mugford’s conduct, including his efforts in making a comprehensive settlement offer to attempt to avoid trial, I find that a fair and reasonable amount to award for costs in all the circumstances is $6,000 inclusive of HST.

[15] For the above reasons, this court orders that Dane Mugford shall pay costs of the Motions to Change to Yvonne Silva fixed in the amount of $6,000, all inclusive.

Healey J.

Released: November 18, 2019