Jaret N. Moldaver

The respondent brought an urgent motion to resume parenting time with the parties' daughter, which the applicant had withheld due to COVID-19 concerns.

The applicant sought to suspend the parenting schedule.

The court affirmed that existing parenting orders should continue unless there are compelling reasons for change, emphasizing the child's best interests and the need for parental cooperation during the pandemic.

The court dismissed the applicant's request to suspend the schedule and ordered both parties to adhere to the existing agreement and order, along with strict COVID-19 health protocols.

The applicant wife brought a motion seeking production and answers to refusals related to the respondent husband's financial disclosure during marriage contract negotiations.

The wife argued that the husband's reliance on his professional advisors, including his lawyer, to prepare his financial disclosure constituted an implied waiver of solicitor-client privilege over his lawyer's file.

The court dismissed the wife's motion, holding that merely stating reliance on a lawyer to perform their job in preparing disclosure does not put the legal advice itself in issue, and therefore does not amount to an implied waiver of solicitor-client privilege, which is considered to be as close to absolute as possible.

The parties, married for 16 years with four children, sought interim orders regarding a section 30 assessment, a Voice of the Child Report, child support, spousal support, and section 7 expenses.

The Respondent sought a section 30 assessment, which the Applicant opposed, suggesting a Voice of the Child Report instead.

The court dismissed the Respondent's request for a section 30 assessment due to insufficient evidence, cost, and delay concerns, particularly given the children's ages and existing professional involvement.

A Voice of the Child Report was ordered for the three youngest children (ages 8, 12, 14) to ascertain their views and preferences, with costs shared equally.

Interim child support was set at $13,945.00 per month, and interim spousal support at $4,910.00 per month, with the Applicant paying 100% of specified section 7 expenses.

The court emphasized the importance of including section 7 expenses and associated tax implications in SSAG calculations.

The retroactive support claim was deferred to trial, and procedural directions were given to expedite the case to trial.

The court issued a costs endorsement following interim motions on parenting and financial issues.

Both parties sought costs from the other.

The Applicant argued for partial costs based on success in financial matters, while the Respondent sought substantial indemnity costs, citing full success on parenting issues and the Applicant's misrepresentation of income.

The court found success to be largely divided, with the Respondent succeeding on the primary parenting issue and the Applicant on several other important financial matters.

Neither party's settlement offer was significantly more favourable, and no unreasonable or bad faith conduct was found.

Consequently, the court declined to award costs, ordering each party to bear their own. interesting_citations_summary: > The endorsement reiterates the three purposes of modern family cost rules: indemnification, settlement encouragement, and sanctioning inappropriate behavior.

It emphasizes that while success is the starting point for costs, it is not determinative, and a "contextual analysis" is required for divided success, considering the importance of issues and resources expended, rather than a simple tally.

The court exercised its discretion under Rule 24(6) of the Family Law Rules to decline a costs award where success was largely divided and no misconduct was present. final_judgement: The court declined to make a costs order, ordering each party to bear their own costs. winning_degree_applicant: 3 winning_degree_respondent: 3 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 1378 file_number: "FS-18-2429" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1378/2019onsc1378.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Serra v. Serra, 2009 ONCA 395" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html" - title: "Berta v. Berta, 2015 ONCA 918" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html" - title: "Thompson v. Drummond, 2018 ONSC 4762" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html" keywords: - Costs - Family Law Rules - Divided success - Interim motions - Parenting issues - Financial issues - Offers to settle - Unreasonable conduct - Bad faith areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **Court File No.:** FS-18-2429 **Date:** 20190227 **Superior Court of Justice - Ontario** **Re:** Adam Rothschild, Applicant **And:** Amanda Rothschild, Respondent **Before:** P. J. Monahan J. **Counsel:** Harold Niman and Richard Niman, for the Applicant Jaret Moldaver and Jesse Rosenberg for the Respondent **Heard:** In Writing --- # Costs Endorsement [1] On January 28, 2018, I issued an Endorsement resolving a number of parenting issues involving the parties’ two children, on an interim without prejudice basis.

I also addressed a variety of financial issues, including interim child and spousal support, providing for a line of credit to be secured against the matrimonial home in order to fund costs associated with the litigation, and an order for exclusive possession of the matrimonial home. [2] The parties were unable to settle the issue of costs incurred in connection with their respective motions, and have made written submissions.

Each seeks an order for recovery of some or all of their costs from the other. [3] The Applicant concedes that he was unsuccessful on the parenting issues but maintains that he was more successful on numerous other financial issues.

On this basis he argues that he is entitled to a portion of his costs pursuant to [Rule 24(6) of the Family Law Rules](https://www.ontario.ca/laws/regulation/990114).

He seeks costs fixed in the amount of $20,000, which is less than half of his total costs incurred of $56,701.93. [4] The Respondent argues that she was entirely successful on the parenting issues which, as noted in my Endorsement, was a significant focus of the argument on these motions.

The Respondent also submits that, although success was divided on financial issues, she was forced to bring her motion for interim child and spousal support in light of what she characterizes as the Applicant’s falsely sworn representations, post separation, with respect to his income.

She therefore argues that she should be entitled to her costs on a substantial indemnity basis in the amount of $45,160.24, which is approximately 80% of her total costs of $55,526.86. [5] For the reasons that follow I decline to make a costs order in respect of these motions. # Applicable Legal Principles [6] It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. [1] [7] [Rule 24(1)](https://www.ontario.ca/laws/regulation/990114) creates a presumption of costs in favour of the successful party. [2] While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.

Entitlement to costs is subject to a variety of factors, including whether the successful party has behaved unreasonably, [3] whether there has been bad faith conduct, [4] and the nature of any offers to settle made by either party. [5] [8] Where success in a step in a case is divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides that the court may apportion costs as appropriate.

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them.

Rather, as Chappel J. noted recently in [Thompson v. Drummond, 2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13, it requires a “contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication.” [9] Where the court concludes that success was in fact divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides the court with considerable discretion.

In such a case, the court may decline to make an award of costs.

Conversely, the court may make an assessment as to which party was more successful on an overall global basis or on the primary issue, and to make an award of costs accordingly. # Analysis [10] As is evident from the fact that each party spent approximately $55,000 on this one-day motion, there were numerous issues in dispute.

However the most significant area of dispute revolved around the Applicant’s access to the parties’ two children and, on this issue, the Respondent was entirely successful.

In fact, I adopted her proposed access schedule in its entirety. [11] Success on the issue of child and spousal support was divided.

I determined the Applicant’s income to be $300,000, which fell between the income levels advanced by the parties.

In the result, the child and spousal support ordered fell between the amounts put forward by the parties. [12] The Applicant was successful on most of the other issue, a number of which were important.

I accepted the Applicant’s submission that a section 30 assessment was not appropriate at this time, and dismissed this aspect of the Respondent’s motion.

I accepted the Applicant’s argument that an income of $25,000 should be imputed to the Respondent, as well as his proposal to establish a line of credit secured against the matrimonial home, with the result that I dismissed the Respondent’s claim for an interim disbursement to fund her litigation costs.

I also dismissed the Respondent’s claim for an order of retroactive support, adjourning this aspect of her motion to trial. [13] Each party served an Offer to Settle.

Both Offers were reasonable.

However neither party achieved a result which was as favourable as their respective Offers.

I do not regard these Offers as materially affecting entitlement to costs on these motions. [14] Although the litigation was contentious and hotly disputed, I do not find that either party behaved unreasonably or in bad faith.

In my view, success on these motions was largely divided.

In the circumstances the most appropriate result is that each party should bear their own costs, and I so order. --- P. J. Monahan J. **Date:** February 27, 2019 --- [1] [Serra v. Serra, 2009 ONCA 395](https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html) at paragraph 8. [2] [Berta v. Berta, 2015 ONCA 918](https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html) at paragraph 94. [3] [Rule 24(4)](https://www.ontario.ca/laws/regulation/990114). [4] [Rule 24(8)](https://www.ontario.ca/laws/regulation/990114). [5] [Rule 18(14) & (16)](https://www.ontario.ca/laws/regulation/990114). [6] [2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13.

The parties brought cross-motions for interim relief following their separation.

The court maintained the existing interim parenting schedule, finding that the applicant's proposed increase in overnight visits was not in the young children's best interests at this time.

The court declined to order a s. 30 assessment due to potential delay.

For interim support, the applicant's income was set at $300,000 based on his expert's report, and the respondent's imputed income was set at $25,000.

The respondent's request for a $108,000 interim disbursement was denied; instead, the court ordered the parties to secure a line of credit against the matrimonial home to fund litigation and private school expenses.

The respondent was granted interim exclusive possession of the matrimonial home.

This is a costs endorsement following a motion where the applicant, Ms. Kang, was largely successful in interpreting a consent order, while the respondent, Mr. Kang, was found to be in breach.

Ms. Kang sought substantial indemnity costs, which Mr. Kang opposed, also seeking his own costs.

The court, applying the Family Law Rules, found Ms. Kang entitled to costs due to her success and Mr. Kang's unreasonable conduct and failure to beat his offer to settle.

Costs were fixed at $12,742.33 payable by Mr. Kang to Ms. Kang, to be paid from funds held in trust.

The applicant father brought a motion to vary a temporary parenting schedule for the parties' child, following the release of a Section 30 assessment report.

The respondent mother brought a cross-motion to maintain the current schedule or implement Phase 1 of the assessor's recommendations.

The court found compelling reasons to change the temporary order, noting the high conflict between the parties and the stress caused by transitions.

Applying the maximum contact principle, the court ordered a 2-2-3 equal parenting schedule and set out detailed terms for transitions, communication, and holidays.

The Applicant sought costs following a long motion for temporary child and spousal support, interim exclusive possession, and interim disbursements.

The Applicant was largely successful on the key issues of income determination and exclusive possession, while the Respondent's cross-motion was dismissed.

The court found the Respondent's offer to settle unreasonable as it failed to address his income, a key issue.

The court awarded the Applicant partial indemnity costs of $60,000, representing approximately two-thirds of her partial indemnity costs, with the remaining one-third related to parenting issues deferred to the trial judge.

The appellants appealed a motion judge's decision that granted partial summary judgment in favour of the respondent on the issue of non-disclosure of the appellant Neil's interest in a family trust established by his father Solomon.

The motion judge found that Neil had deliberately failed to disclose his interest in the trust to Randi when they entered into a separation agreement.

The Court of Appeal allowed the appeals, finding that the trust indenture had been disclosed to Randi's counsel and financial advisors, and that Randi was deemed to have knowledge of Neil's interest through her counsel.

The court held that Neil's omission from his financial statements could not transform actual disclosure into non-disclosure under section 56(4) of the Family Law Act.

The court also found that even if there had been non-disclosure, the asset was not significant as it constituted excluded property under the Family Law Act.

The claims for conspiracy to commit fraud, deceit, and punitive damages against Solomon were also dismissed as they could not be sustained on the evidence.

The Applicant sought costs of a motion and the overall proceeding after a settlement agreement in a high-conflict family law case.

The Respondent also sought costs.

The court awarded the Applicant $5,000 plus HST and disbursements for the motion on a full recovery basis, payable from the Respondent's share of net proceeds.

For the costs of the proceeding, the court found neither party substantially successful in the settlement but determined the Applicant was entitled to partial indemnity costs due to the Respondent's unreasonable and obstructionist behaviour, including failure to disclose financial information and comply with court orders.

The quantum for the proceeding costs was reserved for a further attendance, requiring the Applicant to submit a revised bill of costs excluding "steps in the case" where costs were already dealt with.

The Respondent's claim of inability to pay was rejected due to his lack of financial disclosure and unreasonable conduct.

The Applicant brought a cross-motion for partial summary judgment regarding the valuation date, and the Respondent brought a motion for disclosure and a valuation report at her valuation date.

The court adjourned the Applicant's cross-motion due to insufficient notice and the need for a full day hearing, and also adjourned the Respondent's disclosure motion until after the valuation date issue is determined.

The Applicant was ordered to pay costs for the adjournment.

The Applicant brought a motion for interim exclusive possession of the matrimonial home, and the Respondent brought a motion for an order compelling global mediation.

The court granted the Applicant's motion, finding that it was in the best interests of the children to remain in the only home they had known without disruption.

The court dismissed the Respondent's motion for global mediation, finding no agreement between the parties to globally mediate the matter.

The applicant brought a motion for temporary child and spousal support and interim disbursements.

The core issue was determining the respondent's income, as he claimed an income of $200,000 to $260,000 while the applicant argued it was over $1.4 million based on pre-tax corporate income and benefits.

The court found the respondent's Line 150 income was not the fairest determination and fixed his income at $707,500 for temporary support purposes, applying sections 16, 17, and 18 of the Federal Child Support Guidelines.

The court also ordered the respondent to provide a fair market valuation of his business interests, finding them relevant to spousal support despite a marriage contract.

The respondent brought a motion to quash an appeal on the ground that the order under appeal was interlocutory and not final, placing it outside the jurisdiction of the Court of Appeal.

The order arose from ongoing family law proceedings and required the appellant to make monthly spousal and child support payments, with a provision allowing the respondent to strike the appellant's pleadings on financial issues if payments were not made.

The appellant argued he could not pay and that the consequence clause created a "catch 22" preventing his participation in ongoing proceedings.

The Court of Appeal held that the order was interlocutory and quashed the appeal, finding the jurisdictional issue was plain and obvious.

The applicant husband brought a motion seeking the release of $1M from the net proceeds of the sale of the matrimonial home, as well as the repayment of several small loans.

The respondent wife opposed the motion, arguing that the $1M request had already been dealt with in a prior consent order that required the husband to post a letter of credit, which he failed to do.

The court dismissed the husband's motion, finding that he could not reargue an issue settled by a temporary consent order without bringing a proper motion to vary.

The court also dismissed the balance of the relief, holding that the minor financial disputes should be determined at trial.

Costs of $12,000 were awarded to the successful respondent.

The moving parties brought motions for leave to appeal to the Divisional Court from orders arising from summary judgment motions, while also commencing appeals in the Court of Appeal.

Noting potential jurisdictional issues regarding whether the underlying orders were final or interlocutory, the Divisional Court adjourned the motions for leave to appeal and ordered the parties to provide supplementary written submissions on the jurisdictional question.

The appellant brought a motion for directions seeking an order that motions for leave to appeal to the Divisional Court be heard by the Court of Appeal.

The respondent opposed and brought a cross-motion to adjourn the appeal hearing and extend time to file responding materials.

The motions judge dismissed the motion for directions, finding the Court of Appeal lacked jurisdiction to determine a motion for leave to appeal pending before the Divisional Court.

The cross-motion for extension of time was granted, but the request to adjourn the appeal was denied.

Costs were fixed at $5,000 with disposition deferred to the appeal panel.

In a family property proceeding, certain added foreign respondents moved to set aside interlocutory worldwide Mareva and preservation orders on the basis that they were foreign parties with no sufficient connection to Ontario.

The court held that the respondent spouse's allegations of trust ownership, asset diversion, and risk of dissipation remained substantively unanswered, and that equity favoured preserving the disputed assets pending adjudication of equalization and support claims.

The court found that concerns about comity and practical enforceability did not bar continuation of the orders, particularly given the parallel Florida proceeding and the applicant spouse's invocation of the Ontario court's jurisdiction.

The motion was dismissed and the prior injunctive orders remained in place.

The respondents (former husband and his father) brought a motion for summary judgment to dismiss the applicant's (former wife's) claim that a Separation Agreement should be set aside due to material misrepresentation and non-disclosure regarding the former husband's beneficial interest in a family trust.

The applicant opposed this motion and brought a cross-motion for a preservation order.

The court dismissed the respondents' motion for summary judgment, finding that there was a genuine issue requiring a trial regarding the materiality of the non-disclosure.

The court also granted partial summary judgment in favour of the applicant, finding that the former husband deliberately failed to disclose his interest in the trust and that the former wife did not have actual knowledge of this non-disclosure.

The cross-motion for a preservation order was dismissed.

The remaining issue for trial is the materiality of the non-disclosure and the appropriate remedy.

This trial decision addresses the termination of spousal support and a claim for a retrospective increase.

The applicant sought to terminate spousal support after 16 years of payments.

The respondent sought a retrospective increase, asserting ongoing need and health issues preventing self-sufficiency.

The court found the respondent's evidence regarding her income, employment, and health to be unreliable, contradictory, and indicative of deliberate efforts to obscure her financial affairs and evade tax.

The court concluded that the respondent had achieved self-sufficiency and was not economically disadvantaged by the marriage or its breakdown to an extent requiring indefinite support.

The applicant's request to terminate spousal support was granted, effective April 30, 2017, and the respondent's claim for a retrospective increase was dismissed.

A $40,500 loan advanced to the respondent for litigation funding was deemed paid by future support payments.