r v. Strassburger, 2010 ONSC 2381

CITATION: Strassburger v. Strassburger, 2010 ONSC 2381 COURT FILE NO.: 42581-09 DATE: 2010-04-23 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Chad Bernhardt Strassburger, Applicant and Michelle Elizabeth Strassburger, Respondent BEFORE: The Honourable Madam Justice W. L. MacPherson COUNSEL: Michael Wannop, Counsel, for the Applicant Phillip Garbutt, Counsel, for the Respondent HEARD: January 6, 2010 COSTS ENDORSEMENT [1] This is a decision on Costs of a Motion by the Applicant (Husband) and a Motion by the Respondent (Wife). Both Motionswere originally returnable on June 10, 2009.

The Motions were adjourned for Questioning (which took place on June 22, 2009) and werereturnable on July 31, 2009 but were not argued as the Husband’s counsel withdrew due to a conflict. The Motions were returnable onDecember 17, 2009 and were dealt with on a temporary, without prejudice basis only. The Motions were finally heard on the LongMotions list on January 6, 2010. [2] The three issues that were before me were: a

Summary Judgment Motion by the Husband regarding the validity of themarriage contract; a determination of the Husband’s income for purposes of setting interim child and spousal support; and a request bythe Wife for a variation of the children’s residency arrangement. [3] The Wife was successful on the first two issues while the Husband was successful on the third issue. However, I would notconsider this to be a divided success as suggested by Husband’s counsel, as the bulk of the material before me and the majority of timespent on submissions related to the first two issues.

In determining the amount of costs to be awarded, I have taken into consideration theWife’s position on the residency arrangement and the fact that she did not succeed on that issue as well as the fact that this was a veryimportant issue to the Husband. [4] On a Motion for

Summary Judgment, Rule 16 is clear that when the Motion is unsuccessful, the other party is entitled tocosts on a full recovery basis payable immediately, unless the Motion was justified. I found that there were many areas concerning thevalidity of the contract that necessitated a trial of the issue.

Although the Husband’s counsel suggested that the issue of costs should beleft to the Trial Judge, once the issue of validity of the marriage contract has been decided, I decline to do so as that would defeat theintention of Rule 16 which contemplates that when a party seeks this remedy – if they are not successful – there should be immediatecost consequences. Unfortunately, from a review of the Respondent’s Cost Outline and Bill of Costs, it is difficult to ascertain whatportion of the Wife’s costs relate strictly to that Motion for

Summary Judgment, as opposed to the other aspects of the Motion. I alsorely on Rule 24 (10) which confirms that costs should be determined at each step in the proceeding. [5] With regard to the issues of the Husband’s income and the quantum of child and spousal support to be awarded on an interimbasis, the Wife was clearly successful on these issues, particularly in light of her Offer to Settle dated January 4, 2010 and the low levelof support being proposed by the Husband in his two Offers to Settle.

This issue was of great importance to the Wife given that she wasno longer to be paid by the Company as of the end of December 2009 and she needed to know the interim support level to be paid inorder to be able to decide whether she would be able to remain in the matrimonial home or whether it should be listed for sale and sold. [6] The Husband’s counsel raised the issue of the removal of the Husband’s former counsel (Mr. Keller) and suggests that thisshould reduce the quantum of costs awarded to the Wife as her counsel did not raise this issue until the matter was scheduled to be heardon July 31, 2009.

It should be noted that in the Wife’s initial Answer, she did not raise the issue of the validity of the marriage contract. At the Case Conference held on April 9, 2009, an Order was made granting leave for the Wife to amend her Answer, which was filed onJune 5, 2009. At that point, or at the latest following the Questioning that took place on June 22, 2009, it would have been abundantlyclear that the issue of a potential conflict needed to be addressed. It was incumbent on the Husband and his counsel to consider thepotential conflict that this placed Mr.

Keller in as clearly the circumstances surrounding the drafting and signing of the marriage contractwould make Mr. Keller a potential witness in the proceeding. He should have taken steps to withdraw as counsel for the Husband andwhen he did not, it was appropriate for this to have been raised by the Wife’s counsel, which happened on the return date of the Motionon July 31, 2009.

As such I do not attach any negative cost consequences to the Wife relative to that matter. [7] The Husband’s counsel submitted that the costs should be reduced as the time for the Settlement Conference and forQuestioning should not be allowed, as these were not steps pertaining to the Motion. It is clear from Rule 24 (10) that the issue of costsis to be determined at each stage of a family law matter. The Court of Appeal in Islam v. Rahman 2007 ONCA 622 , [2007]

O.J. No. 3416 (Ont C.A.) has confirmed that this is the proper approach. For that reason there will be no costs allowed regarding theSettlement Conference. However, it is clear that the time spent in the preparation and attendance at the Questioning provided importantand necessary evidence through the transcripts relating to the issues of the validity of the marriage contract and the income of theHusband for purposes of dealing with support.

Although the Transcripts may also be of use at the Trial, I find that it is appropriate forthis to be included in the cost award on the Motion. [8] The Wife has claimed costs on a full indemnity basis of $31,507.88 comprised of fees, including G.S.T. of $29,802.94,disbursements, inclusive of G.S.T. of $1,232.44 and a Lawyer’s fee for appearance in writing of $472.50. [9] Having reviewed the various Offers to Settle and in particular the Wife’s Offer dated January 4, 2010 and the Husband’sOffer to Settle dated December 30, 2010; the factors set out in Rule 24 of the Family Law Rules; the written submissions of both parties’counsel and the Respondent Wife’s Bill of Costs; and keeping in mind the principles of reasonableness, fairness and proportionality (seeDelellis v.

Delellis (ON SC), [2005] O.J. No. 4345 (Ont. S.C.J.) and Patterson v. Patterson [2007] O.J. No. 2681(Ont. S.C.J.)), I award costs to the Respondent Wife in the amount of $20,000.00, inclusive of G.S.T. and disbursements, with the sum of$10,000.00 to be payable forthwith, and the balance to be paid within 90 days. W. L. MacPherson J. Date: April 23, 2010