Court File and Parties
COURT FILE NO.: FS-19-42419
DATE: 20221214
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: T.O., Applicant
AND:
D.O., Respondent
BEFORE: Conlan J.
COUNSEL: Ms. Ursula Cebulak, for the Applicant
Mr. Robert Kostyniuk, for the Respondent
ENDORSEMENT on costs and section 7 expenses
I. Costs
[1] After a trial, this Court delivered Reasons for Judgment dated October 17, 2022, reported at T.O. v. D.O., 2022 ONSC 5896.
[2] On the contested issues, the results were as follows:
spousal support – the husband was wholly successful;
child support – there was equally divided success, as reflected in the annual gross income figure imputed to the husband, which was between the two positions advanced, and as further reflected in the fact that neither position put forward on section 7 expenses was accepted by the Court;
costs for a prior motion – the husband was wholly successful;
chattels – the wife was more successful than the husband; and
loans – the wife was more successful than the husband.
[3] On costs, therefore, given the above, the objective reader would find it unsurprising that the Court stated this at paragraphs 128 and 129 of the reasons:
[128] Regarding costs, there has certainly been some divided success in the matter. Counsel and the parties ought to keep that in mind.
[129] It is time to end the litigation, for the sake of the health of the husband and for the sake of the child.
[4] What has happened, though, is that written submissions on costs have been filed by each side. And for some reason those submissions speak about an appeal and a cross-appeal of the trial decision.
[5] If the husband wants to pursue an appeal of the dismissal of a portion of his loans claim as being out of time based on the two-year limitation period, for debts that accrued in 2013 (paragraph 123 of the reasons) and in light of an originating process that was issued in 2019 and amended in 2021 (paragraphs 122 and 123), he is entitled to do that.
[6] What he is not reasonably entitled to, however, is costs of the trial where it is incontrovertible that there was equally divided success overall.
[7] He won entirely on two issues, spousal support and costs of the prior motion. He did alright on one issue, child support. He did not so good on one issue, the chattels. And he mainly lost on one issue, albeit the biggest issue, the loans.
[8] If that is not equally divided success at trial, then no case result would be described as such.
[9] The same can be said for the wife’s claim for costs. It cannot withstand the clearly equally divided success at trial.
[10] A successful party is presumptively entitled to some costs – 24(1) of the Family Law Rules (“FLR”). There can be no finding here that, overall, either party was more successful than the other. Neither party is presumptively entitled to any costs.
[11] Settlement offers are relevant, even those that do not meet the requirements of subrule 18(14) – 18(16) and 24(5) FLR. The husband made offers to settle, not outrageous ones. The husband does not rely upon subrule 18(14). The wife also made offers to settle, again not unreasonable ones. The wife, too, does not rely upon subrule 18(14).
[12] Settlement efforts, as can be seen, is a neutral factor here.
[13] An absent or unprepared litigant risks having costs awarded against him/her on that basis alone, and a litigant who acts in bad faith shall have costs awarded against him/her on a full recovery basis – 24(7) and 24(8) FLR.
[14] Neither unpreparedness nor bad faith is applicable here, in my view.
[15] The objectives of costs awards are well-settled: to at least partially indemnify successful litigants, and to encourage settlement, and to penalize bad conduct by litigants.
[16] In totality, looking at the actual results after trial, and looking at the law in terms of the FLR and the objectives of the modern approach to the law of costs, the written submissions of the parties have not changed my initial view that there should be no order as to costs. That is the decision of the Court.
II. Section 7 Expenses
[17] In terms of arrears of section 7 expenses owing by the husband, this Court stated the following at paragraphs 98-100 of the reasons:
[98] Regarding section 7 expenses, in terms of arrears, I accept the evidence of the wife that she is owed money from the husband on account of the items outlined in Exhibit 53, however, I do not know what amount she is claiming or how she calculates that. Is it 66.7% of the new total, in accordance with clause 6 of the old draft order filed on CaseLines?
[99] Despite the Court’s express request, counsel for the wife filed no updated draft Order in time for the preparation of these reasons.
[100] This Court grants leave to the wife to clarify this issue, and only this one substantive issue, when it comes time to deliver the written closing submissions on the costs of the trial.
[18] The wife has complied with the Court’s request and has filed a written submission to clarify that the amount sought by the wife on account of section 7 expenses arrears is $27,844.00, after the deduction to be credited to the husband.
[19] The husband has not complied with the Court’s request but rather has filed a written submission that is contrary to the apathy that he showed in the courtroom when questioned about Exhibit 53 and which now appears to dispute the legitimacy of three of the items in question.
[20] With respect, the time for that dispute was at trial. The clarification sought by the Court in its reasons was not an invitation for the husband to argue about the propriety of Exhibit 53’s line items.
[21] The wife’s clarification ($27,844.00 owing by the husband) is accepted by the Court and shall be incorporated into the Final Order.
[22] That completes this Court’s involvement in the case.
Conlan J.
Date: December 14, 2022