COURT FILE NO.: FC-20-499
DATE: 2020-11-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Urszula Liwak-Muir, Applicant
AND
Scott Donald Muir, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Paul Fitzgerald, Counsel for the Applicant
Claudia Bordes, Counsel for the Respondent
HEARD: In writing
Costs endorsement
M. Smith J
[1] The decision on the Motion was released on September 21, 2020 (Liwak-Muir v Muir, 2020 ONSC 5669). The parties were unable to agree on the issue of costs.
[2] The Mother was the successful party. She seeks the recovery of her costs on a full indemnity basis in the amount of $12,604.02, inclusive of disbursements and HST.
[3] The Father acknowledges that the Mother is entitled to some costs but suggests that a cost award should be in the amount of $5,000.00.
THE LAW
[4] Costs orders are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The framework in awarding costs is set out at Rule 24 of the Family Law Rules, O.Reg. 114/99 (the “FLR”).
[5] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party. In setting the amount of costs, the Court shall consider the factors outlined in Rule 24(12) of the FLR, which includes the importance and complexity of the issues, the parties’ behaviour, the time spent, written offers, legal fees, expert witness fees and any other property payable expenses.
[6] Rule 18(14) of the FLR sets out the conditions to be met in order to trigger the cost consequences (full recovery of costs from the date of offer) if a party fails to accept the offer to settle.
[7] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (Mattina v. Mattina, 2018 ONCA 867).
[8] A partial indemnity award ranges from 60 to 70% of the actual costs incurred by the party (Mattina v. Mattina).
[9] Proportionality and reasonableness are the touchstone considerations that need to be applied when fixing an amount of costs (Beaver v. Hill, 2018 ONCA 840).
[10] An offer to settle must be good or more favourable than the result achieved. Close is not good enough. Even if the costs consequences set out in Rule 18(14) of the FLR are not triggered, it may be considered by the Court in the exercising of its discretion under Rule 18(16) of the FLR (Gurley v Gurley, 2013 ONCJ 482; Winiarz v. Anderson, 2020 ONCJ 238).
THE ANALYSIS
[11] The Mother argues that she is entitled to full recovery of her legal fees for the following reasons: (a) she was wholly successful at the Motion; (b) the Father took an unreasonable position vis-à-vis the parenting arrangements, forcing the Mother to bring the Motion; and (c) the Mother met and exceeded the terms of her offer to settle dated May 29, 2020.
[12] The Father responds as follows: (1) there was divided success because the Mother did not succeed in her request for exclusive possession of the matrimonial home. The Father argues that he succeeded because the Mother was ordered to purchase the Father’s interest in the matrimonial home, a relief that was sought in his Motion; (b) the Mother’s offer to settle was structured in a manner that made it impossible for the Father to accept; and (c) the time and fees charged were higher for counsel for the Mother on a matter that was not complex.
[13] The Mother was the successful party and is presumptively entitled to her costs.
[14] It is true that in her Notice of Motion, the Mother sought exclusive possession of the matrimonial home while the Father sought an Order that it be disposed as follows: (a) The Father to buy out the Mother’s interest; (b) the Mother to buy out the Father’s interest; or (c) the matrimonial home be sold to a third party. Either way, the issue of the matrimonial home was not argued at the Motion. I reject the Father’s submission that this should be qualified as a partial success.
[15] The Mother’s offer to settle was all encompassing. It dealt with parenting, the matrimonial home and the equalization of the net family property. Paragraph 14 of the offer to settle provided that it had to be accepted “in full, and not in parts”. The Mother offered that the Father keep his pension as part of the buyout of the home. The Father says that this offer was unacceptable because it required him to cash out his pension to purchase a new home, something he argues was not possible.
[16] I accept that the Mother has met and exceeded the terms of the interim parenting schedule that had been offered to the Father. However, it cannot be said that the Mother succeeded on other portions of the offer to settle, some of which were not even before the Court. I do not find that Rule 18(14) of the FLR has been triggered but the Mother’s success in regard to the parenting schedule is a factor to consider.
[17] I find that the restriction imposed by the Mother to only accept the offer to settle in its entirety was not conducive to engaging the Father in settlement discussions vis-à-vis the Motion. It is noted that the Father’s offer to settle dated June 10, 2020 contained the same clause. Although the Father advanced a parenting position at the Motion that was not successful, I do not find that Father’s refusal to accept an all-inclusive offer to settle equates to the Father behaving inappropriately and warranting sanctions.
[18] The parenting issues that were raised in this Motion were extremely important to the parties. While the issues were not complex, the positions were diametrically opposed, requiring extensive and detailed affidavit evidence.
[19] The Father argues that his counsel spent less time in the preparation and appearance at the Motion (24.3 hours versus 33.8 hours). I have reviewed the Bill of Costs from counsel for the Mother and find that the hours spent is well within the range of reasonable, when considering the materials filed, which I have found useful. Also, the rate charged by counsel for the Mother ($330.00 per hour; 2004 call to the Ontario Bar) is appropriate.
[20] In the normal course, costs are awarded to the successful party on a partial indemnity basis, unless there are good reasons to justify a higher award. I find that the factor that would warrant a slight departure (increase) from the norm of awarding partial indemnity costs would be the Mother’s success on the parenting schedule.
[21] For these reasons and in the exercise of my discretion, I find that the Mother is entitled to costs fixed at $9,450.00, inclusive of disbursements and HST. These costs shall be payable within ninety (90) days of the date of this Endorsement.
M. Smith J
Released: November 17, 2020
COURT FILE NO.: FC-20-499
DATE: 2020-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Urszula Liwak-Muir
Applicant
AND
Scott Donald Muir
Respondent
COSTS ENDORSEMENT
Justice Marc Smith
Released: November 17, 2020