2010 ONSC 6695, 2010 ONSC 6695

CITATION : Nisbett v. Nisbett, 2010 ONSC 6695 COURT FILE NO.: 9828/08 DATE: 2010/12/09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Rose-Ann Nisbett ) ) ) Luigi De Lisio, for the Applicant ) Applicant ) ) - and - ) ) ) Robert Nisbett ) ) ) Paul M. Bauerle, for the Respondent ) Respondent ) ) ) TUCKER, J. COSTS ENDORSEMENT [ 1 ] The applicant seeks her costs of her application and the resulting eight day trial. In total she seeks $48,385.12 in costs and disbursements, on a substantial indemnity basis, citing success in the action and pointing out that no offers to settle were made.

She also argues that the respondent’s actions were self-centred in amending and enforcing those portions of the Agreement which he liked, while disputing the portions he did not.

She also quotes my description of the respondent’s retaliatory attacks upon her as “offensive and repulsive”. [ 2 ] The respondent argues that, notwithstanding my decision, his position taken on the validity of the Separation Agreement was not without merit, that there were no offers to settle, that the total amount claimed by the applicant is excessive in time and in quantum, and that he is impecunious and thus unable to pay any costs award. [ 3 ] First, I will examine the amounts claimed by the applicant, not in line-by-line details as I am not an assessment officer, but to

determine whether in my discretion the amount claimed is justified by consideration of the complexity of the issues in question, the amount of time involved, the behaviour of the litigants, the importance of the issues to be determined to the parties, as well as any other relevant factors. [ 4 ] The central issue here was the validity of a badly drawn separation agreement which I found reflected the agreement of the parties as business partners, but differed greatly from the now acceptable separation agreements carefully drawn covering all family law issues such as equalization and child support, and supported by independent legal advice.

However, this court held the contract was enforceable; the respondent was subject to its terms and as such is liable to pay costs. [ 5 ] The ability to pay may be considered as a factor by the courts in determining the quantum of costs. I do not know the respondent’s financial situation with any accuracy but would not, on the facts of this case, find financial resources to be a reason not to award costs at all. [ 6 ] I need to consider, first, the success of the applicant and the nature of the case, which I find to be complex given the business as well as personal dealings of the parties.

The trial took eight days and there were few areas of consent. There were no offers made. The issues were important to the parties. The financial situation of the respondent is not clear.

The respondent’s position in trying to set aside the Agreement has resulted in substantial costs being incurred by both parties. [ 7 ] Taking into account the Bill of Costs of the applicant and the arguments of both the applicant and the respondent, together with a consideration of the relevant factors, I find in my discretion that the applicant is entitled to her costs and that such costs shall be at a partial indemnity rate of $30,000.00 plus disbursements and H.S.T.

There will be a credit to the respondent of $1,000.00 against that figure for the costs ordered payable by the applicant to the respondent by Justice Maddalena. ___________________________ Tucker, J. Released: December 9, 2010 COURT FILE NO.: 9828/08 DATE: 2010/12/09

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Rose-Ann Nisbett Applicant - and – Robert Nisbett Respondent COSTS ENDORSEMENT Tucker, J. Released: December 9, 2010