2013 ONSC 2381, 2013 ONSC 2381

CITATION : Bentley v. Gillard Bentley, 2013 ONSC 2381 COURT FILE NO.: 44856-10 DATE: 2013-04-23 SUPERIOR COURT OF JUSTICE - ONTARIO RE: James William Bentley, Applicant AND: Patricia Gillard-Bentley, Respondent BEFORE: G. E. Taylor J. COUNSEL: Richard Noll, Counsel, for the Applicant Richard Van Buskirk, Counsel, for the Respondent COSTS ENDORSEMENT [ 1 ] Both parties seek costs of this trial based on their respective Offers to Settle. [ 2 ] By way of an Offer dated June 12, 2012, the applicant offered to transfer his interest in the matrimonial home to the respondent.

Based on the evidence presented at trial this would amount to a transfer of approximately $50,000 in favour of the respondent. The applicant also offered to transfer one half of the value of his pension based on a January 1, 2006 valuation date. The date of separation was an issue at trial. I held that the separation date was January 1, 2006. Based on the evidence at trial, one half the value of the applicant’s pension was $42,000.

The applicant offered to pay to the respondent the additional sum of $20,000 which I presume it was in recognition of his failure to pay periodic child and spousal support subsequent to the date he vacated the matrimonial home. Finally, the applicant offered to pay periodic spousal support of $500 per month for a period of five years. [ 3 ] By way of an Offer dated September 20, 2012, the respondent proposed that the applicant transfer his interest in the matrimonial home to her.

The respondent also proposed that the applicant transfer one half of the value of his pension to her based on a valuation date of January 31, 2008. Because no evidence was presented at trial with respect to the value of the pension on this date is not possible to quantify this portion of the respondent’s Offer, but it is reasonable to conclude that the value would be greater than $42,000. The respondent proposed that the applicant pay a lump sum of $35,000 for retroactive child and spousal support.

The respondent proposed that the applicant pay spousal support of $2000 per month. [ 4 ] The applicant’s position is that his Offer was more favourable to the respondent than the result at trial. The respondent’s position is that the result at trial fell in between the two Offers. [ 5 ] It is my view that with respect to the issue of spousal support, the result at trial was between the two Offers. With respect to the combined issues of equalization and retroactive support, the applicant achieved a result at trial significantly more favourable to him than his Offer to Settle.

At trial the respondent was given an opportunity to acquire the applicant’s interest in the matrimonial home with the approximate value of $50,000. The applicant’s pension was valued at January 1, 2006. The applicant offered to transfer half the value of his pension to the respondent in addition to transferring his equity in the matrimonial home to her. The result at trial will result in the applicant keeping his entire pension. At trial, the applicant was ordered to pay retroactive child and spousal support totalling $26,500.

The respondent offered $20,000 on account of retroactive support while the respondent sought a payment of $35,000. What makes the applicant’s Offer more favourable to the respondent than the result at trial is the proposed transfer of the pension. [ 6 ] I have come to the conclusion that that the applicant is entitled to costs. However, he will not be awarded substantial indemnity costs. He was unsuccessful on the issue of ongoing spousal support and retroactive support in comparison to his Offer to Settle.

I also take into consideration that the applicant persisted in his claim for occupation rent which was completely unsuccessful. [ 7 ] A cost award must be reasonable taking into consideration the circumstances of the paying party. Taking all factors into consideration, I find that an award of partial indemnity costs in the amount of $8000 inclusive of disbursements and HST should be made in favour of the applicant payable by the respondent within 30 days. G. E Taylor J. Date: April 23, 2013