2013 ONSC 5815, 2013 ONSC 5815

CITATION : Guindon v. Boudreau, 2013 ONSC 5815 COURT FILE NO.: 536-12 DATE: 2013-09-16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Diane Guindon, ) ) ) Brian Fisher , for the Applicant ) Applicant ) ) - and - ) ) ) Gaetan Boudreau, ) ) ))) Pamela Barron, for the Respondent ) Respondent ) ) ) )) HEARD: via written submissions Madam Justice B. R. Warkentin Decision on Costs [1] In my endorsement of August 8, and September 6, 2013 I requested written submissions from the parties regarding the issue of costs.

I have now received those written submissions and have considered their positions. [2] This was the Applicant's motion for a restraining order, temporary spousal support, documentary disclosure and reimbursement of certain expenses. The Respondent brought a cross motion for occupation rent and a credit for certain amounts he claimed to have paid to the Applicant. [3] The Applicant was successful on the majority of her claims although I refused her request for a restraining order

and did not award the quantum of spousal support she was seeking.

I granted a modest credit to the Respondent as a credit for support paid/occupation rent. [4] The Applicant seeks costs on a full indemnity basis of $10,479.15 [5] The Respondent claims he is entitled to costs from the Applicant on a full indemnity basis of $5,307.70 alleging that the Applicant's conduct in failing to negotiate or to respond to his offer to settle, entitled him to the costs he had incurred during the course of the litigation. [6] The Respondent made an offer to settle on July 29, 2013; however, his offer was lower than what was awarded to the Applicant. The Applicant made no offers.

General Principles of Costs [7] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act , which provides: Subject to the provisions of

an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid. [8] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. If success is divided, the court may apportion costs as appropriate. [9] The factors which must be considered under Rule 24(11) are: (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behaviour in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signatures of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter.

Disposition [10] The Applicant, although she did not receive everything she was seeking, was more successful in this matter than the Respondent. The Respondent acknowledged his obligation to pay spousal support, however his offer was lower than the amount I ordered. Similarly, while I awarded an amount for occupation rent/spousal support already paid, the amount I awarded was substantially lower than the Respondent's offer. [11] Offers to settle are an important additional consideration when determining the quantum of costs.

In this case, the Applicant made no offers to settle and did not respond to the Respondent's offer. The issues in this case are not complex. The most difficult issue will be a determination of the length of cohabitation/marriage. This is not a case in which an award of full indemnity costs is appropriate. [12] In the circumstances of my findings in this case and having reviewed the Bill of Costs of counsel for the Applicant, I award costs to the Applicant of this motion in the amount of $4,000.00 inclusive of HST and disbursements, payable forthwith.

If the Respondent does not pay the costs award within 20 days, the Applicant shall be paid from the Respondent's portion of the net proceeds of sale of the matrimonial home, currently being held in trust. ______________________________ Madam Justice B. R. Warkentin Released: September 16, 2013

CITATION: Guidon v. Boudreau, 2013 ONSC 5815 COURT FILE NO.: 536- 12 DATE: 2013-09-16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Diane Guindon Applicant - and – Gaetan Boudreau Respondent DECISION ON COSTS Warkentin J. Released: September 16, 2013