Taber v. Taber, 2010 ONCJ 201

Milton Registry No. 446/03 DATE: 2010·IV·30 CITATION: Taber v. Taber , 2010 ONCJ 201 ONTARIO COURT OF JUSTICE BETWEEN: DARLENE MARGARET TABER, Applicant, — AND — GLEN RUSSELL TABER, Respondent.

Before Justice Theo Wolder Heard by way of written submissions Reasons for Judgment released on 30 April 2010 CIVIL PROCEDURE — Costs — Assessment of quantum — Importance, complexity or difficulty of issues and inability to pay — Several years earlier, wife had locked herself into separation agreement under which she was entitled to equal division of net family property (including payor’s pension), based on presumption that he would retire at age 65, even though she had good reason to believe that he would retire at age 55, which would increase value of his pension, to wife’s detriment — In fact, payor did take early retirement and, on basis of rule against “double recovery” as per Boston v.

Boston , 2001 SCC 43 , he proved to be successful at trial in his claim to terminate his spousal support and in resisting wife’s claim for continuing spousal support after he took early retirement — Worse yet, she had rejected his generous offers to settle that would have given her continuing spousal support for fixed number of years — By virtue of his success and of his generous offers, payor claimed costs of $19,999 for 2-day trial on almost “full recovery” basis, which court found not unreasonable — Nevertheless, court examined clause 24(11) (

a) of Family Law Rules (consideration of importance, complexity or difficulty of issues in case) and found that elements of this case had turned relatively simple issue into complex one — Through separation agreement and rule against “double recovery”, payor had scored windfall that court was unwilling to increase by ordering wife to pay payor’s costs on almost “full recovery” basis and did not wish to increase inequity suffered by wife as result of her making poor choice under separation agreement — Moreover, her finances were fragile, her income was modest and had become even more so by her recent workplace injury — She had to rely on part-time income and small amount of savings from which she now had to reimburse payor for spousal support overpayments that he had made — Wife simply lacked ability to pay significant sum of costs — In its discretion, court reduced quantum of payor’s costs by about 75% and limited recovery to $5000.

STATUTES AND REGULATIONS CITED Family Law Rules , O. Reg. 114/99 [as amended], subrule 24(1) and clause 24(11)( a ). CASES CITED Boston v. Boston , [2001] 2 S.C.R. 413, 2001 SCC 43 , 271 N.R. 248, 149 O.A.C. 50, 201 D.L.R. (4th) 1, 17 R.F.L. (5th) 4, 28 C.C.P.B. 17, [2001] S.C.J. No. 45, 2001 Cars​well​Ont 2432. James G. Battin ......................................................................................... counsel for the applicant Daniel D. Hall ........................................................................................ counsel for the respondent For previous proceedings, see Taber v.

Taber , 2010 ONCJ 81 , [2010] O.J. No. 2358, 2010 Cars​well​Ont 3760 (Ont. C.J.), per Justice Theo Wolder. [ 1 ] JUSTICE T. WOLDER:— The respondent was successful after trial in his claim to terminate his spousal support

obligation effective March 2009 and in resisting the applicant’s claim for continuing spousal support after the respondent took early retirement from his employment with C.P. Rail in March 2009. As a result, and based upon the presumption set out in subrule 24(1) of the Family Law Rules , O. Reg. 114/99 [as amended], the respondent seeks costs on a partial indemnity basis up to the time that the respondent served his formal offer to settle upon the applicant. The respondent’s two formal offers to settle would have given the applicant continuing spousal support for a fixed number of years.

Both of these offers were rejected by the applicant and, as a result, the respondent seeks costs on a full indemnity basis from the time that the first offer to settle was made by the respondent until the conclusion of this trial.

The respondent therefore seeks costs against the applicant in the sum of $19,999.10 for this two-day trial. [ 2 ] Notwithstanding the presumption set out in subrule 24(1) , which is not disputed by the applicant, the applicant submits that no costs should be awarded against her on account of clause 24(11)( a ), which requires this court to consider the importance, complexity or difficulty of the issues in this case when determining the issue of costs. [ 3 ] The applicant lost her claim for continuing spousal support as a result of the court’s having applied the rule against “double recovery” as set out by the Supreme Court of Canada in Boston v.

Boston , [2001] 2 S.C.R. 413, 2001 SCC 43 , 271 N.R. 248, 149 O.A.C. 50, 201 D.L.R. (4th) 1, 17 R.F.L. (5th) 4, 28 C.C.P.B. 17, [2001] S.C.J. No. 45, 2001 Cars​well​Ont 2432. Since the respondent’s income generated from the unequalized portion of his pension was relatively equal to the applicant’s total income, the respondent’s support obligation was reduced to $1.00 per month commencing on the date that he retired in 2009. [ 4 ] There is no doubt that, when the parties entered into their separation agreement, the applicant was aware that the respondent could take early retirement at age 55.

She further knew that, prior to their separation, the respondent had planned to retire at age 55. She was made aware, prior to entering into their separation agreement that, if the respondent did so, the value of his pension would be much greater than it would be if the respondent did not retire until age 65. Notwithstanding the applicant’s having this knowledge, she agreed to an equal division of the net family property, including the respondent’s pension, based on the presumption that the respondent would retire at age 65.

The separation agreement was final and did not give the applicant the right to seek a greater amount should the respondent decide to retire before age 65. As a result, when the respondent actually decided to take early retirement at age 55, thereby reducing his income to pension income only, the applicant ended up having received less than her half share of the actual net family property, based upon the increase in the total net family property caused by the increase in the pension value that resulted from the respondent’s early retirement.

Unfortunately for the applicant, the terms of the separation agreement did not allow her to re-address this resulting inequity. [ 5 ] The respondent made two generous offers to the applicant that would have had the effect of reducing to some degree the economic disadvantage suffered by the applicant as a result of the terms of the separation agreement into which she had voluntarily entered. The respondent had offered to continue to pay the applicant spousal support for five years. For reasons that are not clear to me, the applicant rejected that very generous offer.

As a result, she rejected an offer that would have provided her with a better financial outcome than she received at the conclusion of this trial. [ 6 ] This court does agree that this case had complexities that turned a relatively simple issue into a complex one. This is a factor that I can take into consideration when determining the issue of costs.

Notwithstanding that the respondent was successful after trial, I am persuaded that this court should not increase the inequity sustained by the applicant as a result of her failure to address in the separation agreement her ability to seek an adjustment as a result of any increase in the valuation of the net family property resulting from the respondent’s early retirement.

Therefore, although this court cannot go behind the written separation agreement that the parties made when they made it, I am satisfied that it is within my jurisdiction to mitigate the inequity caused by the applicant’s failure to address that serious issue at the time the separation agreement was made by limiting the costs against the applicant in this case. The respondent has, by virtue of the separation agreement and the rule against double-recovery sustained a windfall.

I am unwilling to increase that windfall by ordering costs on an almost full recovery basis against the applicant in favour of the respondent. [ 7 ] The amount that the respondent claims for costs is not unreasonable. The applicant’s failure to accept the respondent’s very generous offer to settle the litigation, in light of the case law that did not favour the applicant, and the presumption set out in subrule 24(1) supports a reasonable cost award to the respondent against the applicant. However, I am satisfied that the applicant’s financial situation is a fragile one.

Her income is modest and has been made even more so by her recent workplace injury. I find that the applicant lacks the ability to pay a significant amount of costs, based on the fact that she will now have to support herself from her part- time income and her small amount of savings from which she is also obliged to reimburse the respondent for spousal support overpaid by him. [ 8 ] Accordingly, I am going to reduce the quantum of costs payable by the applicant to the respondent by about 75% and limit such costs to $5000.00.

This is will balance the respondent’s obvious entitlement to be awarded some costs against the applicant based on his obvious success, against the moderating factors hereinbefore referred to in this judgment. [ 9 ] Therefore, this court orders that the applicant shall pay to the respondent his costs of this proceeding fixed in the sum of $5000.00.