Nicholas Mills and Anna-Marie Pacula (Mills), 2013 ONSC 2810

CITATION: Nicholas Mills and Anna-Marie Pacula (Mills) 2013 ONSC 2810 COURT FILE NO.: 30159/07 DATE: 2013-05-16 SUPERIOR COURT OF JUSTICE - ONTARIO RE: NICHOLAS MILLS AND: ANNA-MARIE PACULA (MILLS) BEFORE: The Honourable Mr. Justice M.D. Parayeski COUNSEL: Counsel for the Applicant, Melanie Sager Counsel for the Respondent, David G. Thwaites COSTS RULING [ 1 ] I am asked to rule upon the issue of costs relating to the 3.5 day trial heard by me. The respondent mother was successful on virtually all of the issues argued at trial.

I see no reason to deviate from the presumption that she is entitled to be paid her costs. That leaves quantum of those costs to be determined. She suggests that her costs, on the full indemnity scale, should be $74,505.49, inclusive of some $1,383.19 in disbursements, or $48,748.20, plus those same disbursements, on the partial indemnity scale.

The applicant suggests $10,000 all inclusive. [ 2 ] I have carefully considered the provisions of Rules 18 and 24 of the Family Law Rules , and the case law provided by counsel. [ 3 ] While admitting to some difficulty in correlating all of the terms of the respondent’s various offers to settle to my trial rulings, I am satisfied that the applicant ought to have accepted the same.

Of course, that observation is based largely upon hindsight, which is why there remains, even under the Rules, judicial discretion to ensure that as much fairness as possible is maintained. [ 4 ] I am little persuaded by the applicant’s submission that his exposure to costs should be significantly reduced by the fact that he finds himself in financial difficulty. Despite having a good income, he appears to continue to live beyond his means as was the case before and during the trial. That should not be visited upon the respondent at this stage.

That said, I am mindful that too large a costs award may have negative impact upon the children while they are in the applicant’s care. [ 5 ] I appreciate that at least some, if not all, of the respondent’s costs may be deductible by her for income tax purposes inasmuch as they relate largely to support issues.

Her reply submission that the issue of past similar deductions is still being “addressed” by the C.R.A., does not mean that this factor should be ignored. [ 6 ] While it is always possible for a costs paying party to argue that the preparation time expended by opposite counsel is “excessive”, care must be exercised to avoid punishment for adequate preparation.

It does not always make sense to compare the dockets of counsel. [ 7 ] In all of the circumstances, the applicant shall pay to the respondent her costs of the trial fixed at $50,000 all inclusive, such costs being collectible and treated as a child support award through the Family Responsibility Office. PARAYESKI, J. MDP:mw Date: May 16, 2013