Court File and Parties

COURT FILE NO.: 219/16

DATE: 20200915

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa Ann Jeffrey, Applicant

AND:

Casey Adam McNab, Respondent

BEFORE: The Honourable Justice R. B. Reid

COUNSEL: J. D. Singer, Counsel, for the Applicant

B. Marshall & V. McDougall, Counsel, for the Respondent

HEARD: August 20, 2020; Costs submissions due September 10, 2020

DECISION ON COSTS

[1] The Applicant brought a motion seeking to dispense with the need for the Respondent’s signature on a transfer of land. The Respondent brought a cross-motion to set aside, rectify, or clarify the order of D. Edwards J. dated December 20, 2019.

[2] The dispute concerned the decision by Justice Edwards that the Applicant be permitted to buy the jointly-owned matrimonial home from the Respondent. He set out terms of purchase and sale which included an interim determination that the Respondent should pay off the existing encumbrances, with the ultimate responsibility for and allocation of the debts being part of the issue of property equalization.

[3] The property transfer did not occur on the designated closing date as a result of the Respondent’s position that the decision contained a mistake.

[4] The decision was not appealed.

[5] I found that there was neither ambiguity nor clear mistake in the decision, and therefore no reason for it to be rectified, clarified or set aside, even if there was jurisdiction to do so under the Family Law Rules by another judge. Therefore, the Respondent’s cross-motion was dismissed.

[6] The Applicant’s motion became moot upon the agreement of the Respondent to close the transaction after hearing the outcome of his cross-motion. Other aspects of the Applicant’s motion, as regards a property in Florida, were uncontested at the hearing.

[7] The Applicant seeks costs on a full indemnity basis for the all-inclusive sum of $13,525.

[8] The Respondent proposes an order in the Applicant’s favour for costs on a partial indemnity basis of $3,000.

[9] The court’s discretion to award costs arises from the provisions of section 131 of the Courts of Justice Act, and the factors which may influence the exercise of that discretion are set out in rule 24 of the Family Law Rules.

[10] Success is a presumptive factor as per sub-rule 24(1).

[11] The Respondent submits that the Applicant should have engaged with him in other, less expensive means to have the matter resolved, such as contacting Justice Edwards for clarification, before either party resorted to bringing a motion. However, faced with a decision that imposed a timetable for the property transfer, I find that it was incumbent on the Respondent to have taken whatever steps were needed to remedy his concerns in a timely way. I do not criticize the Applicant for having brought her motion following the aborted closing.

[12] While unsuccessful on the motion, I do not find that the Respondent acted unreasonably so as to justify the imposition of negative costs consequences on that basis.

[13] The Applicant made a rule 18 Offer to Settle dated February 27, 2020. That Offer was in terms that mirrored those of my decision. On that basis, the Applicant is entitled to costs on a partial indemnity basis up to February 27, 2020 and thereafter presumptively on a full recovery basis.

[14] Included in the costs claim by the Applicant are fees charged to her by her real estate lawyer totalling approximately $2,400. Some of those fees were incurred as a result of the aborted closing, and some would have been incurred in any event of the motion to close the transaction. However, those fees are not directly part of the motion costs and as such I have excluded them from this costs award. It may be that they form part of submissions on the property division and costs generally to the trial judge.

[15] Based on the foregoing, the Applicant will have her costs of these motions payable by the Respondent on a partial indemnity basis to February 27, 2020 and thereafter on a full indemnity basis in the amount of $9,654 inclusive of HST and disbursements. Costs are payable within 30 days of this date.

Reid J.

Date: September 15, 2020