Matter was bifurcated and issues determined were dates of cohabitation and separation and severing of divorce from corollary relief proceedings. Wife refused to acknowledge that separation had taken place, which was completely unrealistic. It was determined that parties commenced cohabitation on July 1, 2005, and separated on October 15, 2009, and it was ordered that divorce could be severed from corollary relief and be granted once husband filed affidavit. Husband applied for costs. Application granted. Husband served offer to settle, but offer was not more successful than result at trial on issue of date of cohabitation. Offer did not attract mandatory full indemnity costs after service. However, since offer nearly mirrored result on main issue of date of separation, it was taken into account in determining costs. Wife took unreasonable position and was guilty of unreasonable conduct. Wife’s financial circumstances were not taken into account in setting costs at this stage of proceedings. Husband’s bill of costs was reasonable. Costs payable for first stage of trial were fixed at $19,000, inclusive of HST and disbursements, which was just over 80% of full indemnity costs. Costs were payable in any event of cause but enforcement of costs was stayed pending result at trial.
O’Brien v. O’Brien (Oct. 25, 2013, Ont. S.C.J., J.P.L. McDermot J., File No. FC-10-35650-00) Additional reasons to 233 A.C.W.S. (3d) 169. 233 A.C.W.S. (3d) 675.