ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 219/16 DATE: 2020/01/21

B E T W E E N:

Lisa Ann Jeffrey Applicant

- and -

Casey Adam McNab Respondent

COUNSEL: James D. Singer, for the Applicant Donna Wowk, for the Respondent

BEFORE: The Honourable Justice D.L. Edwards

DECISION ON COSTS

[1] On December 19, 2019 I heard two motions and released my decision on December 20, 2019. I requested costs submissions, which I have received and reviewed. This is my costs endorsement.

[2] As a result of the motions, I ordered that the matrimonial property be purchased by the applicant upon terms set out in the order. I declined to provide the alternative requested by the respondent in the event that the applicant failed to purchase the property in accordance with those terms.

[3] Both parties had asked that spousal support be adjusted. The respondent wanted it substantially decreased and the applicant wanted it substantially increased. Ultimately, I increased spousal support, but not to the extent sought by the applicant.

[4] The respondent also sought leave to sell two properties. I agreed to vary the non-depletion order to allow those sales and reinvestment of the net funds, provided the respondent did not increase his debt.

[5] The applicant asserts bad faith on behalf of the respondent and submits that she achieved a result better than her offer to settle. She seeks costs for the motion on a very close to full indemnity basis in the amount of $38,020.

[6] The respondent submits that if there was bad faith, it was on behalf of the applicant and that success was divided. Further, he asserts that the applicant did not obtain results better than her offer to settle. Finally, he submits that the costs claimed are excessive.

The Law

[7] The applicable provisions for the exercise of my discretion include s.131 of the Courts of Justice Act, and Rules 18 and 24 of the Family Law Rules.

[8] The Court of Appeal has confirmed that cost rules are premised upon three important principles:

a) To partially indemnify successful litigants for the cost of litigation; b) To encourage settlement; and c) To discourage and sanction inappropriate behaviour by litigants.

Analysis

[9] First, without considering the Offers to Sale made by the parties, and only looking at the results of the motions, I am satisfied that success was mixed, with the applicant slightly more successful than the respondent.

[10] Second, I found that both parties were to some extent “at fault” for the fact that the matrimonial home had not been sold, but I found that the greater fault lay with the conduct of the respondent.

[11] Third, given my concern about the conduct of both parties, I am not prepared to conclude that the respondent’s conduct constitutes bad faith, and I do not want to reward the conduct of the applicant, who is also partly responsible for the ongoing nature of these matters. Such a reward would be to encourage litigation, rather than to encourage settlement.

[12] Fourth, I am satisfied that the applicant did not obtain results as favourable or more favourable than her offer to sale.

[13] Fifth, the applicant seeks costs on an almost full recovery basis of $38,020. The respondent submits that these costs are excessive and notes that his total account for this motion was $28,771.79. Given my conclusions that success was mixed and neither party is entitled to its full costs, whether calculated on a partial or full indemnity basis, I need not decide whether the applicant’s costs are excessive.

[14] Finally, in all of the circumstances, I order that the respondent pay to the applicant costs in the amount of $10,000 fixed, inclusive of HST.

D. L. Edwards J. Released: January 21, 2020