LEMAY J

[1] This family law litigation concerns a series of farm properties. On September 29th, 2023 I heard a motion brought by the Respondent, Larry McDonald, to enforce a settlement that he claimed the parties had reached approximately six months previously, right before they were supposed to proceed to trial. Larry’s position was supported by his son, Jamie. Given that Jamie and Larry share a last name, I will refer to all of the parties by their first names. No disrespect is intended by this.

[2] Jamie was also involved in the litigation because he was involved in the farm properties. The Applicant, Aurelia Urness, claimed that a settlement had not been reached. By way of written reasons issued on October 13th, 2023, I granted Larry’s motion and determined that the action had been resolved (see 2023 ONSC 5789).

[3] Part of the resolution of the action was that each side would bear their own costs. That provision is not challenged. However, Larry now seeks to recover the costs of the motion to enforce the settlement. Jamie supports Larry’s position and seeks to recover his own costs. Aurelia opposes Larry’s request for costs. I must now determine the issue.

Positions of the Parties

[4] Larry argues that the issues at the heart of the motion were very important to both parties. He also argues that the matter was moderately complex and that he was entirely successful on the motion. Larry’s submissions do not set out what scale of costs he is seeking. His substantial indemnity costs, inclusive of HST and disbursements are $14,936.53. His partial indemnity costs, inclusive of HST and disbursements are $11,435.23.

[5] Jamie argues that costs should be granted on a substantial indemnity basis. Jamie argues that Aurelia should have accepted that a settlement existed and should not have attempted to litigate issues about ongoing conduct at the farm properties. Jamie seeks substantial indemnity costs in the sum of $4378.51, inclusive of HST and disbursements.

[6] Aurelia argues that success on the motion was divided, as Larry and Jamie did not obtain all of the terms that they were seeking to include in the minutes of settlement. Aurelia also argues that there was a lack of clarity in the notice of motion that Larry brought, which made it more difficult to assess the merits of the motion. As a result, Aurelia asserts that each party should bear their own costs.

Analysis

[7] I was advised that there were no offers to settle that are relevant to the determination of this motion. As a result, the two questions that I must determine are as follows:

a) Who was the successful party?

b) What the scale of costs should be?

[8] I start with Aurelia’s assertion that success was divided. I disagree. In Scipione v. Scipione 2015 ONSC 5982, the Court stated that the starting point in determining success was who got what they asked for. In this case, Larry asked the Court to stop the trial and enforce the settlement. He got what he asked for, and he is the successful party.

[9] Aurelia’s assertion that success was divided because Larry didn’t get all of the terms that he sought misses a fundamental point. Aurelia claimed there was no settlement. I decided differently. Aurelia lost on the main issue and was, therefore, the unsuccessful party. She should be required to pay costs to the successful parties.

[10] This brings me to the scale of costs. Larry does not specifically articulate a position on the scale of costs. Jamie seeks costs on a substantial indemnity basis. This is primarily a family law action, although there are commercial elements to it. The three fundamental principles of modern costs awards were set out in Serra v. Serra 2009 ONCA 395:

a) To partially indemnify successful litigants for the costs of litigation;

b) To encourage settlement; and

c) To discourage and sanction inappropriate behaviour by litigants.

[11] In addition, in Beaver v. Hill 2018 ONCA 840, the Court of Appeal stated that the touchstone considerations in assessing costs are proportionality and reasonableness. The Court also confirmed that there was no principle in family law that costs generally approach full recovery. The family law rules permit the judge to adjust the costs recovery up or down depending on the circumstances.

[12] In this case, I see no basis for costs recovery on a substantial recovery or full recovery basis. There is no allegation of bad faith in this case, and the issues in the motion were addressed in a generally reasonable way. As a result, I am of the view that costs should be awarded to Larry and Jamie on a partial indemnity basis.

[13] This brings me to the quantum of costs. The matter was not complex. However, it was important to the parties and it did require the marshalling of various materials. Aurelia’s costs outline, filed before my decision was released, shows a claim for approximately $7,000.00 for partial indemnity costs. This means that the partial indemnity amounts sought by the Applicant and Jamie are within the reasonable range of the parties expectations. I also note that there was no real challenge to the quantum of costs in Aurelia’s submissions.

[14] As a result, costs for this motion are to be paid by Aurelia on a partial indemnity basis. Larry shall be entitled to costs in the sum of $10,000.00 inclusive of HST and disbursements and Jamie shall be entitled to the sum of $2,500.00 inclusive of HST and disbursements.

Conclusion

[15] For the foregoing reasons, Aurelia is to pay the following costs within thirty (30) days of today’s date:

a) To Larry, the sum of $10,000.00 inclusive of HST and disbursements.

b) To Jamie, the sum of $2,500.00 inclusive of HST and disbursements.

[16] I remain seized of this matter to the extent described in my October 13th, 2023 endorsement.

LEMAY J.

Released: November 24, 2023

COURT FILE NO.: FS-18-056-00

DATE: 2023 11 25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AURELIA URNESS

Applicant

and -

LARRY McDONALD

Respondent

and -

JAMIE NICOLAS McDONALD

Third Party

REASONS FOR JUDGMENT

LeMay J.

Released: November 24, 2023

Urness v. McDonald, 2023 ONSC 6674

Case Summary

LEMAY J

Positions of the Parties

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 3