Jesse Rosenberg

Following a successful motion for a Mareva injunction freezing $20 million of the respondent husband's assets, the applicant wife sought costs on a full recovery basis.

The court found the husband acted in bad faith by failing to make financial disclosure, breaching preservation orders, and hiding assets.

As a result, mandatory full recovery costs were ordered under Rule 24(10).

The court reduced the requested amount of $184,450 to $125,000 to reflect a fair and reasonable amount, noting overstaffing by the wife's legal team.

The applicant husband brought a non-suit motion to dismiss the respondent wife's claim to set aside their separation agreement and spousal support release.

The court reviewed the test for a non-suit motion in family law, determining it requires assessing whether the claimant has presented a prima facie case.

The court granted the non-suit motion regarding the separation agreement as a whole, finding no prima facie evidence of unconscionability, lack of understanding, or failure to disclose significant assets.

While the court found a prima facie case regarding the spousal support release due to post-separation income disparities, it ultimately dismissed the claim on a balance of probabilities, concluding the release substantially complied with the objectives of the Divorce Act given the wife's informed decision to waive support.

This decision addresses a high-conflict parenting dispute between Isabel Jarosz and Christopher Denda regarding attendance at their daughter’s extracurricular activities.

The court interprets a prior order and considers the best interests of the child, ultimately ruling that each parent should not attend routine extracurricular activities during the other’s parenting time, but both may attend significant events.

The court also addresses concerns about surreptitious recordings and awards partial costs to the successful party.

This is a costs endorsement following a motion where the Respondent (Mother) was largely successful on parenting issues and exclusive possession of the matrimonial home.

The Respondent sought full recovery costs, arguing her pre-motion proposals constituted valid offers to settle under Rule 18 of the Family Law Rules.

The Applicant (Father) contended these proposals were not Rule 18 offers as they predated his motion.

The court found that pre-motion proposals can indeed be valid offers to settle for cost purposes, as Rule 18 allows offers "even before the case has started." The court awarded the Respondent $44,500 in full recovery costs, considering the Applicant's conduct, including attacking the Respondent's mental health and attempting to admit inadmissible surreptitious recordings.

This is a motion for an interim parenting schedule concerning two children, aged nine and six.

The Applicant Father sought equal parenting time (2-2-5-5 schedule), while the Respondent Mother sought a 60/40 split in her favour (6 nights with Father, 8 nights with Mother every two weeks), along with a mutual right of refusal.

The court found the Mother to be the primary caregiver based on detailed evidence and third-party affidavits, contrasting with the Father's less particularized assertions.

Considering the children's best interests, their strong attachment to the Mother, and the Mother's primary caregiving role, the court granted the Mother's proposed 60/40 parenting schedule on a temporary basis, along with exclusive possession of the matrimonial home to the Father on consent.

The moving party mother sought an interim order permitting her to relocate with the parties' three-year-old child from Toronto to Calgary, pending a final trial.

The mother, who had been the child's primary caregiver since separation, had secured a significant career opportunity in Calgary.

The responding party father, who exercised limited supervised parenting time due to severe and ongoing substance abuse issues, opposed the move.

The court applied the best interests of the child test and the factors for interim relocation, finding a strong probability that the mother's position would prevail at trial.

The court concluded that the move would not significantly impact the young child and granted the interim relocation, establishing a supervised parenting schedule for the father.

The parties separated after an eight-year marriage.

The applicant mother struggled with alcohol abuse, leading to the respondent father becoming the primary caregiver for their three children.

The court maintained the current parenting schedule, with the children residing primarily with the father and the mother having parenting time 5 out of 14 days subject to alcohol monitoring.

The court also resolved complex financial issues, including valuing the father's security business on the date of marriage, determining the parties' incomes for support purposes, and addressing claims of unjust enrichment and resulting trust.

The father was ordered to pay an equalization payment of $882,115.16 and retroactive spousal support, while the mother was ordered to pay retroactive section 7 expenses.

The plaintiff brought a motion for leave to appeal the March 19, 2020 order of Moore J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the defendant in the amount of $4,500.

Following a decision on the merits, both the applicant and respondent sought costs of $15,000 against the other.

The court found that neither party was substantially successful, despite both investing considerable time and expense.

Consequently, the court ordered that costs be in the cause.

The parties brought cross-motions in a high-conflict family law dispute.

The applicant sought a section 30 assessment under the Children's Law Reform Act, variation of interim parenting orders, and an order dispensing with the respondent's consent for child counselling.

The respondent sought variation of the interim parenting orders.

The court ordered a section 112 investigation under the Courts of Justice Act on consent and dismissed the section 30 assessment request due to the parties' financial constraints.

The court dismissed both parties' motions to vary the interim parenting orders, finding neither established a material change in circumstances under the Gordon v. Goertz test.

The request to dispense with consent for counselling was also dismissed.

The court addressed costs following a successful summary judgment motion by the respondents, Stephen and William Elias, against the applicant, Emma Trefler, regarding the validity of a $950,000 mortgage.

Stephen Elias sought full or substantial indemnity costs for both the summary judgment motion and an earlier emergency motion.

William Elias sought substantial indemnity costs for the summary judgment motion.

The court found Stephen's offer to settle did not comply with Family Law Rule 18(14) due to demanding full indemnity costs as a condition of acceptance and lacking a true element of compromise, and William's offer was deficient for not specifying the scale of costs.

Crucially, the court exercised its discretion under Rule 24(4) of the Family Law Rules to deprive Stephen of costs due to his unreasonable and abusive behaviour, including "hurtful, abusive and hateful" anti-Semitic text messages to the applicant, which created a toxic environment and prevented settlement.

Despite William not exhibiting the same behaviour, the court found that due to the identity of interest with Stephen and the circumstances necessitating William's involvement (Stephen's prior agreement to provide proof of loan and William's inability to fully account for funds), ordering the applicant to pay William's costs would defeat the purpose of Rule 24(4).

Consequently, all parties were ordered to bear their own costs.

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 respondents, the applicant's former spouse and his father, brought motions for summary judgment to determine the validity of a $950,000 mortgage registered against a property owned by the former spouse.

The applicant argued the mortgage was a sham designed to defeat her equalization claim.

The court found that the father had advanced the funds to construct a home on the property and that the applicant had not signed the mortgage acknowledgment under duress.

The court granted partial summary judgment, declaring the mortgage valid and ordering the release of $950,000 from the sale proceeds to the father.

The applicant father brought a motion for a custody and access assessment under s. 30 of the Children's Law Reform Act, arguing that the parties' relationship was high conflict and the child was manifesting stress.

The respondent mother opposed the motion.

The court applied the Glick criteria and found that the evidence did not support the need for an assessment, as there was no clinical diagnosis, the child was thriving, and the conflict was typical of parenting disputes.

The motion was dismissed, and the parties were ordered to exchange parenting plans.

This case involved two long motions in a family law proceeding, with mutual allegations of non-compliance with existing orders and the Family Law Rules.

The applicant sought to terminate spousal support, dismiss a nanny, and have expenses paid from matrimonial home proceeds or offshore accounts.

The respondent sought to strike the applicant's pleadings for breaches of court orders and to vary an order to obtain loan financing from offshore insurance policies.

The court dismissed the applicant's motion, found the applicant in breach of multiple orders, and granted the respondent's motion in part, ordering the applicant to remedy payment and disclosure breaches within 60 days and permitting the respondent to obtain $100,000 CAD in loan financing from offshore policies.

The matter was ordered to be case managed.

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.

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 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.