COURT FILE NO.: FS-19-0175-00
DATE: 2021-07-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DONNA PRINGLE
Applicant
- and -
BRIAN PRINGLE
Respondent
Mr. L. Ruberto, for the Applicant
Ms. L. Stam, for the Respondent
HEARD: July 12, 2021, via Zoom at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Costs of Trial of an Issue
Overview
[1] The parties entered into a marriage contract prior to marriage. The validity of that contract was challenged by the wife. Following trial of an issue, the contract was set aside. The wife seeks her costs of $21,415.93 based on her success at trial and having regard for the offers to settle that she delivered prior to the hearing.
[2] The husband offered to pay a lump sum of $35,000 to settle all issues prior to the hearing. He argues that:
There was no significant delay resulting from the husband’s conduct of the trial;
The quantum of costs sought by the wife, who is legally aided, represents a windfall to the wife or to Legal Aid;
The wife’s offers did not conclude all matters in dispute between the parties;
The husband’s ability to pay costs is limited, based on his annual income of about $37,000; and
The husband’s reasonable expectations of the wife’s costs would have been informed by his own costs, which were about $5,000 less than the wife’s.
Discussion
[3] The trial of an issue with respect to the validity of the marriage contract was a single-issue trial. Although it was important to the parties, it was not complex. The parties filed their evidence-in-chief through affidavits and were cross-examined. There was one other witness, the solicitor who drafted the marriage contract. The solicitor filed an affidavit and was cross-examined by each party.
[4] The case was originally scheduled for a two-day hearing. In fact, it required almost four days to complete. In my view, detailed cross-examination of the wife about her financial contributions to the marriage significantly delayed the hearing and dealt with irrelevant matters, as explained in the judgment.
[5] The completion of argument was also delayed when counsel for the husband referred to case law that she did not serve on opposing counsel or file with the court. Thus, a continuation of the hearing to complete submissions was required. The same issue arose during costs submissions, when the husband’s case law was not served or filed.
[6] In my view, there is a duty on a party making a legal argument to present the court with any relevant authorities on which it relies. There is no corresponding duty on the court to research a party’s submissions. In this case, Ms. Stam conceded that the case law is not settled with respect to the scale of costs to which a legally aided litigant is entitled. She did not file case law to support her argument that Ms. Pringle would receive a windfall if costs claimed were granted. Accordingly, I give no weight to this submission.
[7] The wife submits that she is entitled to partial indemnity costs to the date of her offer of April 8, 2021 and substantial indemnity costs thereafter. The husband submits that the offers delivered by the wife did not finally resolve all issues between the parties and therefore cannot be considered.
[8] Family Law Rule 18 defines an offer as “an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer.”
[9] Rule 18 (14) sets out the costs consequences of failure to accept an offer as follows:
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
[10] Even if Rule 18 (14) does not apply, Rule 18 (16) gives the court discretion to consider any written offer to settle, the date it was made and its terms.
[11] In this case, the trial of an issue commenced on April 15, 2021. The wife’s first offer to settle was served on April 8, 2021. It was followed by her second offer of April 13, 2021.
[12] Both offers provided that the three properties owned by the parties be valued as of the date of marriage and the date of separation with costs equally shared.
[13] The first offer provided that the cumulative increase or decrease in the property values be equally shared. The second offer amplified this provision, adding that the increased value of the properties attributable to the reduction in the mortgage balances would also be equally shared. The second offer also provided that if the parties could not agree on what these values were, they would schedule a settlement conference to deal with the issue.
[14] Both offers provided for the payment of lump sum spousal support or alternatively, monthly spousal support, and arrears of spousal support, payable monthly or as a lump sum and no costs.
[15] Both offers provided for a future hearing if necessary; however, the second offer also specified that all remaining claims except for divorce would be dismissed.
[16] The husband’s offer is dated April 14, 2021. It proposed $20,000 as lump sum spousal support and $15,000 for increased equity in the properties, with all other claims, except divorce, dismissed with no costs.
[17] I do not agree that an offer must finally resolve all issues between the parties. Rule 18 provides that an offer may settle one or more claims in a case. Thus, an offer which serves to narrow the issues may be considered by the court.
[18] In this case, the wife’s offers specified a roadmap for the resolution of the issues. This was as much as she could do. In the absence of a net family calculation, it was not possible to determine what equalization would be payable. As well, since the trial did not deal with equalization, it is not possible to know whether the husband’s offer is more favourable than a judgment on the merits. In these circumstances, I conclude that both parties have made offers described under Rule 18 (16). Accordingly, I find that the wife is not entitled to substantial indemnity costs from the date of her offers.
[19] The husband submits that he has limited ability to pay costs because his annual income is about $37,000. I do not agree that his ability to pay costs is circumscribed by his earnings, as the evidence shows that he has two properties available to pay costs.
[20] In fixing costs, the court can consider the reasonable expectations of a party as to costs incurred by the opposing party. Here, the husband argues that his costs were $5,000 less than those of his wife.
[21] It is common for the party bearing the burden of proof, as the wife did here, to spend more time preparing the case. As it happened, counsel who initiated the wife’s claim was appointed to the bench before the trial commenced. Mr. Ruberto was therefore obliged to spend time familiarizing himself with the issues and the evidence, so that the trial could proceed without delay. That the wife’s costs exceed those of the husband is not unreasonable.
[22] Dealing with quantum of costs, both parties claim fees of between $80 – 100 per hour for “support staff.” These personnel are not described as “law clerks” as characterized in the “Information for the Profession” notice found in Rule 57 of the Rules of Civil Procedure. There is no reference in Family Law Rule 24 to costs claimable for support staff.
[23] The hourly rate for lawyers is set to cover the expenses of running their offices, paying salaries and overhead, and other expenses of practicing law. The salaries of secretarial staff are part of this overhead. They are not claimable as costs from an opposing party. In the absence of evidence that “support staff” are law clerks, whose training, experience and tasks performed on the file qualify them for this designation, these costs are disallowed.
[24] Calculating Mr. Ruberto’s hourly rate at $225.00, deducting claims for support staff, and calculating costs based on the partial indemnity scale, Mr. Pringle is ordered to pay Ms. Pringle’s costs fixed at $15,958, inclusive of HST.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: July 19, 2021
COURT FILE NO.: FS-19-0175-00
DATE: 2019-07-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DONNA PRINGLE
Applicant
- and –
BRIAN PRINGLE
Respondent
REASONS ON COSTS OF TRIAL OF AN ISSUE
Pierce J.
Released: July 19, 2021
/cjj