COURT FILE NO.: FC-17-1064
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lynda Van Delst
Applicant
– and –
Thomas John Hronowsky
Respondent
Katherine Shadbolt, Counsel for the Applicant
Self-represented
HEARD: In Writing
Decision on COsts
Justice Engelking
[1] A trial was held on January 12, 13 and 15, 2021 for the purpose of recalculating the equalization payment due based on a normal retirement age of 60 for Ms. Van Delst as per the directions of the Ontario Court of Appeal in Van Delst (Hronowsky) v. Hronowsky, 2020 ONCA 329. Reasons for Judgment were released on March 29, 2021. Written submissions on the issue of costs were invited and received from both parties. This is my decision on costs.
Positions of the Parties
[2] The Applicant, Ms. Van Delst, seeks costs on a full indemnity basis in the amount of $30,392, or in the alternative, on a substantial indemnity basis in the amount of $28,392. She submits that she was the more successful party in the trial, and that the Respondent acted unreasonably.
[3] Although he does not provide an amount, the Respondent, Mr. Hronowsky, submits that costs can be awarded to him, based on the success he met in reducing the amount of post-judgment interest claimed by Ms. Van Delst..
The Law
[4] The Ontario Court of Appeal has held that the Family Law Rules[^1] on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and ; (3) to discourage and sanction inappropriate behaviour by litigants.”[^2]
[5] Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^3] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.[^4] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^5]
Analysis
[6] As I indicated in the decision of March 29, 2021, a trial in this matter was entirely unnecessary, particularly given the narrowness of the issue, as directed by the Court of Appeal.
[7] Mr. Martel’s calculation of Ms. Van Delst’s pension at age 60 was available to Mr. Hronowsky since October of 2018. Mr. Martel’s supplemental report in July of 2020 stated essentially the same thing as his October 2018 letter. Mr. Hronowsky’s expert, Mr. Jocsak, when opining using the same assumptions as Mr. Martel, calculated Ms. Van Delst’s pension at 60 years of age to be within approximately $1000 pre-tax dollars as that of Mr. Martel’s calculation, something which Mr. Jocsak indicated was essentially the same in actuarial terms.
[8] In addition, Ms. Van Delst provided two offers to settle, dated June 19, 2020 (amended as to a typo on June 30, 2020) and August 27, 2020. The latter offer was provided to Mr. Hronowsky again on January 4, 2021 by email in the hopes that a trial could be avoided. Both offers were more or as favourable to Mr. Hronowsky as was my final decision.
[9] Mr. Hronowsky did not accept Ms. Van Delst’s offers and did not provide her with any offer to settle prior to the trial which could properly be considered by this court pursuant to Rule 18(16). Although Mr. Hronowsky submits that he did so, Ms. Van Delst indicates that the verbiage, including argument, contained within his communications made them impossible to consider as actual offers
[10] The same sort of verbiage contained in his submissions on costs has made them very difficult to discern. Mr. Hronowsky’s submissions touch upon issues from the original trial and costs award, the Court of Appeal hearing and costs award, this hearing and what appears to be an appeal of this hearing. Ultimately, Mr. Hronowsky submits that as a result of my trial decision, he was relieved of a $7,500 interest burden, which therefore renders him the successful party on the hearing. I disagree. As a result of the delays caused by the appeal and getting to this trial, payment by Mr. Hronowsky of the outstanding equalization was delayed long enough for the post-judgment interest rate to change. I view this difference simply as a post-trial adjustment, not as an indicator of success by Mr. Hronowsky at trial.
[11] This is most definitely a case where settlement ought to have occurred, particularly based on the Ontario Court of Appeal’s direction that “further cost and delay” ought to be minimized. Instead, what I referred to as a “tragically unnecessary hearing” was conducted for three days, one of which was for the equally unnecessary exercise of Mr. Hronowsky cross-examining Ms. Van Delst.
[12] In the circumstances of this case, which ought not to have occurred as all given a) Mr. Martel’s already available opinion of October 2018, b) Ms. Van Delst’s two (or really three) offers to settle, and c) Ms. Van Delst’s success at trial, I am of the view that it is appropriate to exercise my discretion to order costs on a full recovery basis.
Order
[13] My order is:
Mr. Hronowsky shall within 30 days pay Ms. Van Delst costs of $30,392, inclusive of HST and disbursements; and,
This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act[^6] of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
Justice Engelking
Released: October 4, 2021
COURT FILE NO.: FC-17-1064
DATE: 2021/10/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lynda Van Delst
Applicant
AND:
Thomas John Hronowsky
Respondent
DECISION ON COSTS
Engelking J.
Released: October 4, 2021
[^1]: O.Reg. 114/99, as am [^2]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [^3]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [^4]: Ibid. [^5]: A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer. [^6]: R.S.O. 1990, c.C.43, as am