Court File and Parties

Court File No.: FS-22-00104214-0000 Date: 2024 11 20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAMPBELL, Clifford G. Applicant

Counsel: Alisha Thakkar, for the Applicant (Agent)

- and -

CAMPBELL, Paulette M. Respondent

Counsel: Patrick Di Monte, for the Respondent

Heard: In Writing

Costs Endorsement

LEMAY J.

[1] On October 4th, 2024, I heard a motion by the Respondent seeking an order that the matrimonial home be listed for sale. On October 22nd, 2024, I released reasons (2024 ONSC 5863) in which I granted the Respondent’s motion. It is now time to fix the costs for this motion.

Positions of the Parties

[2] The Respondent seeks substantial recovery costs payable from the Applicant to her on the basis that she made “the equivalent of a Rule 49 offer and is entitled to costs on a substantial indemnity basis.” The amount of costs sought is $8,418.50.

[3] The Applicant seeks costs on a partial recovery basis on the basis that he was partially successful in this motion in that he successfully resisted some of the ancillary orders being sought by the Respondent. He is seeking the sum of $3,992.33. In the alternative, the Applicant argues that each party should bear their own costs.

Law and Disposition

a) The Law

[4] The governing rules of modern costs principles are set out in Serra v. Serra 2009 ONCA 395 as follows:

a) To partially indemnify successful litigants for the costs of litigation; b) To encourage settlement; and c) To discourage and sanction inappropriate conduct by litigants.

[5] The Court of Appeal has also dealt with costs in its decision in Beaver v. Hill 2018 ONCA 840, (2018) 143 O.R. (3d) 519. That decision concludes that the ‘close to full recovery’ approach adopted in some case-law is, in most cases, inconsistent with the Family Law Rules express contemplation that full recovery costs would only be paid in specific circumstances. Therefore, costs are generally awarded on a partial recovery basis.

[6] There are exceptions to these principles. First, if a party engages in bad faith conduct, then costs are payable on a full recovery basis, and are payable immediately. Second, if a party does as well as or better than their offer to settle, then they may be entitled to substantial indemnity costs.

[7] With those principles in mind, I now turn to the issues in this case.

b) Analysis and Disposition

[8] The first question that must be answered is who is the successful party in this motion? There is a detailed discussion of the issue of success in Scipione v. Scipione 2015 ONSC 5982. In determining success, the key question to ask is who got what they wanted?

[9] In this case, the Respondent has been seeking an order permitting her to sell the matrimonial home and obtain the proceeds for several years. In the motion before me, she was successful in obtaining that relief. The fact that she did not get all of the terms that she wanted in relation to the sale does not change the basic fact that she obtained the key relief that she was seeking. Her lack of success on a couple of ancillary points would only entitle the Applicant to a very modest deduction in the costs that he would otherwise be expected to pay.

[10] In that respect, I reject the Applicant’s submission that he “is deserving of costs for successfully defending against the Respondent’s demands that he vacate the home immediately….”. The fact is that the Applicant has been delaying the sale of this property for years. When the motion was determined, he was unsuccessful in his primary position that the property should not be sold at all. Therefore, he should pay the successful party their costs.

[11] This brings me to the question of whether the Respondent should be entitled to substantial indemnity costs on the basis of her offer to settle. This offer to settle was served on October 2nd, 2024. Given that the motion was heard on October 4th, 2024, the offer to settle is a valid offer within the provisions of Rule 18(14) of the Family Law Rules.

[12] The Respondent argues that she has done better than her offer to settle because that offer contained a proposal that the house would be sold and that she would set aside the sum of $100,000. The Respondent argues that my decision not only did that, but also required the Applicant to set aside the sum of $25,000. The problem with this submission is that the Respondent’s offer to settle required the Applicant to set aside the sum of $100,000 from the proceeds of the sale of the matrimonial home as well. I did not require him to set aside that much money from the proceeds of sale and, as a result, the Respondent has not met or bettered her offer to settle. Costs are, therefore, to be determined on a partial indemnity basis.

[13] This brings me to the quantum of costs. The Applicant suggests that partial indemnity costs in the sum of $3,992.33 are a reasonable amount of costs for him to be awarded on the basis of his success in this matter. I have already explained why I have rejected the Applicant’s submission that he should be entitled to costs for this motion. However, the fact that the Applicant suggests this amount is an excellent indicator of what the reasonable expectations of the losing party would be in this case.

[14] More generally, the time spent by the Respondent’s counsel does not appear to be unreasonable. This is especially true when the procedural history of this matter is considered. It must be remembered that the parties had a procedural motion before Chozik J. prior to the motion on the merits before me. That procedural motion would have taken time, and the Respondent is entitled to be compensated for that time.

[15] When I step back and consider the matter as a whole, I am of the view that the Applicant should be required to pay the Respondent costs in the sum of $4,000.00 inclusive of HST and disbursements.

Conclusion

[16] For the foregoing reasons, I order the Applicant to pay the Respondent costs in the sum of $4,000.00 inclusive of HST and disbursements.

[17] Counsel for the Respondent sought to have these costs paid within thirty (30) days. I disagree. I am of the view that the costs should be paid out of the Applicant’s share of the proceeds of the matrimonial home when the matrimonial home is sold, and I so order.

LEMAY J.

Released: November 20, 2024