Court File and Parties

Court File No.: FC-13-2819 Date: 2020/08/10 Superior Court of Justice - Ontario

Re: Lisa Shouldice, Applicant And Robert Roland Shouldice, Respondent

Before: Justice R. Ryan Bell

Counsel: Loreen Irvine, for the Applicant Philip A. Burger, for the Respondent

Heard: In writing

Costs Endorsement

[1] This is my decision on costs of the motion and cross-motion I heard on July 16, 2020 brought in the applicant’s motion to change the final order of Mackinnon J. dated December 16, 2016. In his motion, the respondent sought orders that he have the sole authority to list and sell the matrimonial home, located on McCordick Road, and the Gallagher Road property. In her cross-motion, the applicant sought the dismissal of the respondent’s motion and an order that the Gallagher Road property be transferred to her for $275,000.

[2] The applicant was the successful party on the motions. I dismissed the respondent’s motion and ordered that the Gallagher Road property be transferred to the applicant for a purchase price of $275,000.

[3] The parties have been unable to agree on costs of the motion and cross-motion. The applicant requests her costs on a full indemnity basis fixed in the amount of $13,769.88. The respondent submits that there should be no costs of the motions because (he says) his position on the sale of the Gallagher Road property was reasonable, the applicant’s offer to purchase the Gallagher Road property was made only after the respondent initiated his motion, the applicant has delayed in proceeding with her application for a vesting order, and most of the time spent by the applicant’s counsel relates to the motion to change.

[4] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. There is nothing in this case that would displace the presumption. The applicant is entitled to her costs. The issues are whether the applicant is entitled to full recovery costs and the quantum of costs.

[5] On July 2, 2020, the applicant served an offer to settle the respondent’s motion on terms that were the same as those I ultimately ordered – that the applicant purchase the Gallagher Road property for $275,000 and pay out the existing mortgage. The offer provided:

This Offer to Settle is open for acceptance with no costs payable up to noon 7 July 2020 with no costs payable [ sic ]. If the Offer to Settle is accepted after that date but before the Motion scheduled for the 16th July 2020, the Respondent shall pay $2000 in costs to the Applicant within 15 days of accepting the offer to settle.

[6] The applicant’s offer to settle met all the criteria set out in Rule 18(14) of the Family Law Rules and remained open to the date of the motion. The result achieved by the applicant on the motions before me was the same as what she was willing to settle for. On this basis, I find that the applicant is entitled to her costs of the July 16 motions to July 2 when the offer was served and full recovery costs thereafter.

[7] I have reviewed the applicant’s bill of costs. It appears that a substantial amount of the time claimed relates to the broader motion to change and efforts to settle that motion, and not the motions before me on July 16. The applicant acknowledges that her costs include consultations with and the services of a lawyer experienced in civil litigation and in dealing with creditors. While no doubt necessary in the context of the motion to change, the time spent by applicant’s counsel and the civil litigator she retained to assist is not time that is recoverable in the context of the July 16 motions.

[8] Even on a full recovery costs basis, the total amount claimed by the applicant – close to $14,000 – is excessive for motions that were far from complex. This observation serves to reinforce my conclusion that much of the time for which the applicant now claims is not recoverable on these motions. The respondent’s own bill of costs provides no assistance as to what would be fair and reasonable given that the respondent includes time by his counsel going as far back as February 2019.

[9] In my view, it would be fair and reasonable for the respondent to be required to pay the applicant her costs, fixed in the all-inclusive amount of $4,500 (partial indemnity up to July 2 and full recovery thereafter). This amount is to be deducted from the respondent’s share of the net proceeds from the sale of the Gallagher Road property to the applicant, prior to the balance of the respondent’s share being paid into court.

Justice R. Ryan Bell Date: August 10, 2020