Court File and Parties

COURT FILE NO.: FS-18-101

DATE: 2021-05-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jessie Miller, Applicant

AND:

Sarah Machan, Respondent

BEFORE: Justice J.R. Sproat

COUNSEL: Robert E. Scriven, for the Applicant Carol A. Allen, for the Respondent

COSTS ENDORSEMENT

[1] I have reviewed the written submissions by the parties.

[2] This two-day trial dealt only with the value of the matrimonial home. Each side called one expert witness. Mr. Miller’s expert opined that the value was $260,000. Ms. Machan’s expert opined that the value was $414,000. I determined the value to be $392,000.

[3] Ms. Allen’s Cost Submissions indicated that she spent 54.3 hours on this matter and that her full indemnity rate is $365 per hour. The costs claim includes a number of dockets not related to the value of the matrimonial home. I would reduce the hours claimed to 45 hours for that reason. Mr. Scriven spent 49 hours on this matter, so I find that the 45 hours spent by Ms. Allen is reasonable.

[4] Mr. Scriven submits that Mr. Miller “beat” two offers to settle and that he should be entitled to costs. I do not agree. Ms. Machan’s February 7, 2019 offer was that Mr. Miller make an equalization payment of $100,000. I do not know if this only related to the value of the matrimonial home. The March 17, 2021 offer by Ms. Machan specifically requested $57,000 calculated on the basis that the value of the matrimonial home was $414,000.

[5] Mr. Scriven suggests that the March offer “indicates a complete inflexibility and unwillingness to compromise”. Mr. Miller’s position would be a lot stronger if he had made an offer that approached $414.000. There is no indication that he made any offer. As such, he went to trial contending the home was worth only $260,000, whereas I found it to be worth $392,000. Ms. Machan was clearly the successful party.

[6] Mr. Scriven also submitted that Mr. Miller had some success at trial because the home was valued at $22,000 less than Ms. Allen contended. I do not agree. Success at trial is primarily a function of whether a party obtained a favourable result compared to offers made by the other side.

[7] Ms. Machan did not better her March 17, 2021 offer. Mr. Miller did not engage in any egregious conduct that would merit full indemnity costs.

[8] I conclude that it is reasonable that Mr. Miller pay 75 percent of the fees incurred by Ms. Machan for trial. As such, I award her costs as follows:

Fees $12,319 (45 x $365 = $16,425 x 75% = $12,319)

HST $1,601

Disbursements $743.40

HST on Disbursements $18.85

Total $14,682.25

SPROAT J.

Date: May 21, 2021