Court File and Parties
Court File No.: FS-13-1934 Date: 2018-08-17 Superior Court of Justice – Ontario
Re: Manjit Kaur Kang, Applicant And: Gurnek Singh Kang, Respondent
Before: Ricchetti, J.
Counsel: Jaret Moldaver, for the Applicant Karen Dosanjh, for the Respondent
Heard: June 15, 2018
Cost Endorsement
Background
[1] This proceeding was commenced in 2013.
[2] The Applicant claimed custody, child support and spousal support. The Respondent did not dispute his obligation to this relief claimed, but instead submitted that his income and assets were not as high as claimed by the Applicant. The Respondent’s first Financial Statement (dated May 29, 2013) showed that he had no net income.
[3] Equalization was also an issue, with the primary assets being a home and a taxi license.
[4] The central issues were the value of assets (predominantly a taxi license value) and the Respondent’s income for support purposes.
[5] As can be seen from the voluminous materials and types of motions brought, this was a high conflict case.
[6] This high conflict case was made more difficult by the combative and often acerbic, bordering on unprofessional, approach taken by the respective counsel resulting in numerous allegations such as sharp practice and misleading the court. This uncooperative and uncivil approach by counsel made this proceeding more protracted and expensive for the parties. With whom the fault lies and whether or to what extent their conduct should be taken into account in a cost award cannot be properly or fully assessed based on summary disposition cost submissions.
[7] This high conflict proceeding has resulted in conferences and numerous motions over the years. The court file is comprised of more than 5 full boxes of materials. There are at least seven (7) Continuing Records.
[8] This proceeding was scheduled to be tried in Brampton’s January 2018 sittings.
[9] On December 15, 2017 the Applicant made a written offer (“Offer”).
[10] On December 19, 2017, the Respondent accepted the Offer (“the Agreement”).
[11] The Agreement settled, on a final basis:
a) The equalization of certain Net Family Property; b) Retroactive child support; c) Retroactive s. 7 expenses; d) Retroactive spousal support; e) Prospective child support (including s. 7 expenses); and f) Prospective spousal support.
[12] There remained unresolved, certain post separation accounting issues (“Post Separation Accounting Issues”). These issues are proceeding to trial in August 2018.
[13] The issue of costs was not settled in the Agreement. The Agreement provides:
The issue of Ms. Kang’s costs shall be summarily determined by the Court.
[14] There were difficulties taking out an Order incorporating the terms of the Agreement. The Respondent wanted his financial obligations to be paid from the net proceeds of the sale of the matrimonial property, which proceeds are held in trust, But there was no order to this effect or term of the Agreement. Other terms were sought. I have no hesitation concluding that the Respondent caused these difficulties and delay. As set out below, this is consistent with the Respondent’s failure to comply with the terms of the Agreement after it was executed.
[15] As a result, a motion was brought by the Applicant to obtain an order in accordance with the Agreement. The matter came before this court on June 15, 2018. Two orders were issued on that day:
a) An order requiring the Respondent to consent to the draft Order incorporating the terms of the Agreement, fixing a date to determine the Post Separation Accounting Issues and awarding the Applicant costs, on a full recovery basis, of her motion dated April 12, 2018 (“Motion”); and b) A partial Final Order incorporating the term of the Agreement (“Agreement Order”).
[16] Extensive written submissions (and lengthy responses) on costs of the proceeding and the Motion were received from both parties.
The Position of the Parties
[17] The Applicant seeks costs:
a) Of the Motions Order, in the amount of $11,780.31 all inclusive (full recovery basis); b) Of the proceeding, in the amount of $190,104.65 (“full indemnity”) or $174,818.96 (substantial indemnity); and c) An order that any costs award be paid from the Respondent’s ½ share of the net proceeds of the sale of the matrimonial home held by Messrs. Kahn, Zack, Ehrlich, Lithwick LLP, from the sale of the Vancouver property (“Net Proceeds”).
[18] The Respondent seeks costs of $21,033.11 for the Motion and $194,725.22 of the Proceeding.
Costs Under the Family Law Rules
[19] In Serra v. Serra, 2009 ONCA 395, at paras 8, 9 and 12, the Court of Appeal stated that cost order are intended:
(1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
[20] The applicable Family Law Rules provide the following:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. (4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. (5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept. (6) If success in a step in a case is divided, the court may apportion costs as appropriate. (8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. (10) Promptly after dealing with a step in the case, the court shall, (a) make a decision on costs in relation to that step; or (b) reserve the decision on costs for determination at a later stage in the case. O. Reg. 235/16, s. 4 (2). (10.1) In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs. (11) In setting the amount of costs, the court shall consider, (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 signature of the order; (e) expenses properly paid or payable; and (f) any other relevant matter.
Costs of the Motion
[21] It is important to note, that although a party may be entitled to full recovery costs of a motion, the court is nevertheless required to ensure the amount of costs awarded for time and disbursements were reasonably required for the motion.
[22] The Applicant includes a Bill of Costs for this motion seeking full recovery after April 3, 2018 and partial indemnity prior to April 3, 2018. The Applicant was found to be entitled to “full recovery” costs “from April 3, 2018”. There is no basis for the Applicant’s further claim to partial indemnity costs prior to April 3, 2018. I am not prepared to re-visit the issue of what costs the Applicant is entitled.
[23] This court reviewed the motion materials, the issues raised and the time it took to deal with this matter. I conclude that the motion materials were not voluminous or complex and the matter dealt with fairly quickly. The outcome of the motion was obvious given the terms in the Agreement. If anything, the documentation filed in these submissions make it clear that the conflict between counsel increased the time and expense necessary for this motion.
[24] The Applicant’s docket entries show that the motion was first considered on Feb 2, 2018. Approximately 24 hours is claimed for the preparation and attendance on the motion. Yet, the drafting of the motion and affidavit spanned the period of time from February 2, 2018 until the middle of April 2018.
[25] As to the issue of quantum of costs, it is difficult to imagine why such a simple matter required as much time as demonstrated in the dockets particularly since much some of the motion materials were commenced well before April 3, 2018. Yet, more than four pages of dockets have been produced relating to this rather simple and not complex motion subsequent to April 3, 2018. It is hard to imagine that this is all time reasonably spent on this motion.
[26] I do not mean to second guess the Applicant’s counsel’s decision as to how much time to spend on this motion. However, as stated above, it is only full recovery of all time reasonably spent on the motion that is recoverable in a cost award. Full indemnity costs is not a carte blanche of all time spent by the Applicant’s counsel.
[27] Court appearances by counsel were very brief.
[28] In my view, even on a full recovery basis, $5,000 is a reasonable amount for fees of this motion.
[29] I see no issue with respect to the disbursements claimed.
Conclusion on the Costs of the Motion
[30] I allow $5,000 plus HST plus disbursements of $374.48 (all inclusive) as a fair and reasonable amount of costs, on a full recovery basis, for the motion. Costs are payable forthwith.
[31] I agree that this cost award be paid from the Net Proceeds to the Applicant forthwith. This payment shall be taken into account by the court ordering the eventually payout of the Net Proceeds to ensure that this cost award only comes out of the Respondent’s share of the Net Proceeds that he may be eventually entitled to.
Costs of the Proceeding
No Prior Offers to Settle
[32] There are no prior offers to settle the proceeding which would engage cost consequences under the Family Law Rules.
The Agreement
The Applicant’s claim for costs
[33] The Agreement specifically provides that the Applicant’s costs are to be summarily determined. However, the Agreement does not specify that the Applicant would be entitled to a particular scale of costs or to the quantum of costs.
[34] I conclude that the Applicant’s scale and quantum of costs must be determined under the Family Law Rules.
The Respondent’s Claim for Costs
[35] The Respondent also claims costs of the proceeding. There is no term in the Agreement which grants the Respondent costs or right to claim costs.
Conclusion
[36] In my view, in light of the express provision of the Agreement that the Applicant’s costs would be determined on a summary basis, it would be inconsistent to grant costs to the Respondent because this would, in essence, mean the Applicant be denied costs. Such a result would be inconsistent with and make the term in the Agreement meaningless.
[37] Clearly, the intention was that the Applicant would receive costs but that the scale and quantum would be determined by the court summarily.
[38] The Respondent is not entitled to costs of the Proceeding. The Applicant is entitled to costs of the Proceeding.
Applicant’s Entitlement to Costs of the Proceeding
[39] As a general rule, where parties settle a proceeding, a court is generally loathe to award costs to one party or the other unless there are compelling reasons. Justice Mackenzie in Dhillon v. Dhillon, [2009] O.J. No. 4459 made the following statements at paragraphs 15-17:
There appears to be some authority to support the proposition made by Orkin, M., in his Law of Costs to the effect that “the view has been expressed that when parties reach a settlement as between themselves, the court should be very slow to make an award of costs against one of them” – see page 2-86.
The basis for this proposition appears to be the case of Anishinaabe Child and Family Services Inc. v. CBC, [1997] M.J. No. 181 (Q.B.).
In declining to make a costs award in the face of the parties’ settlement, the court (Oliphant, J.) made the following observations:
Where parties make a settlement as between themselves, the court in my view should be very slow to make an award of costs against one of the parties. Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court. [para. 37]
In the absence of such findings, it is problematic in the extreme for the court to exercise its discretion on a rational basis in making any costs award… In the present situation, the provisions of the minutes of settlement respecting the claims and defences of the claims of each of the parties are, on their face, insufficient to enable the court to be in a position to determine what was the motivation in the settlement of each of the litigants in either being successful in asserting a claim or resiling from a claim. An example of this difficulty can be found in the assertion of facts which have never been the subject of any judicial finding on issues of reasonableness or unreasonableness or even misconduct.”
[40] In Witherspoon v. Witherspoon, 2015 ONSC 6378, Leach J. made the following observations regarding claims for costs and settlements, where such settlements are achieved on the eve of trial:
[42] Second, in my view, whether one is focused on pre-trial steps in the litigation or the other residual costs of the litigation, the attempt to argue cost entitlement and quantification through application of the normally applicable cost recovery rules, after the parties have reached a formal settlement of the substantive issues between them, without trial, is fundamentally misconceived and inappropriate. In that regard:
As noted above, the cost regime created for family law litigation in this province, through enactment of Rule 24 of the Family Law Rules, focuses in large measure on the criteria of “success”, (which creates a presumption of entitlement), and “reasonable” or “unreasonable” behaviour.
However, in my view, those criteria, and the degree of relative “success” in particular, presuppose the existence of objective benchmarks from which the court in turn can draw appropriate and reliable conclusions; e.g., by comparison of party positions and with objectively determined outcomes that reveal the true relative merits of each party’s position. Such objective benchmarks are lacking where the outcome against which parties attempt to argue their degree of “success” is not the product of judicial fact-finding and objective determination, but an agreed settlement.
For example, both parties in the case before me are now trying to argue that the agreed settlement has generated an outcome more in line with their pre-settlement desires, and more or less favourable than the outcome suggested by prior settlement offers. However, such arguments presuppose that the outcome achieved by settlement is a proper benchmark by which to assess relative success, and thereby the reasonableness of either party’s behaviour, insofar as the negotiated outcome should be presumed to coincide with the objective determination and outcome at which a court would have arrived, had the matter been the subject of judicial fact-finding and determination.
In my view, those underlying assumptions are self-evidently fallacious. As our courts have recognized, “there are doubtless many motivating factors why parties enter into settlements and why a particular party may resile from claims or defences to claims either made or responded to”, and “the reasonableness or unreasonableness of any party’s position in either asserting a claim, abandoning a claim or abandoning a defence or answer to a claim can depend on a myriad of factors”. [7]
In that regard, experience has shown that parties to matrimonial litigation frequently decide to compromise and accept a settlement, effectively abandoning certain pre-settlement claims and defences without pressing them to trial, not because the party concedes in any way that positions previously held in the litigation have no objective merit, but because the party is simply tired of the ongoing acrimony, and/or feels unable to incur the expense of litigating the matter through to a final conclusion after trial. Given such realities, it seems to me that permitting post-settlement claims for costs, in which negotiated settlements are used after the fact as supposed benchmarks by which the objective reasonableness of pre-settlement positions should be measured, runs counter to public policy. Endorsing such an approach would actively discourage parties from making any compromises in order to achieve settlement.
Moreover, attempts to address such cost issues in a post-settlement context are unlikely to promote judicial economy. Again, application of the cost rules presupposes that the court is in a position to rely on factual or other objective findings that either support or detract from the parties’ respective submissions. However, that self-evidently will not be the case where the parties rely on matters and considerations that have never been the subject of any judicial fact finding, or corresponding judicial determination on issues or reasonableness, unreasonableness, or alleged misconduct. [8] The parties in the case before me seem to have come to such a realization either consciously or instinctively, given their respective efforts to now revisit contentious issues and evidence, and belatedly have such matters resolved in their favour in order to justify their cost positions. However, an exercise that effectively encourages and requires the parties and the court to revisit and essentially litigate such issues, which supposedly have been resolved by a substantive settlement, seems entirely and inappropriately retrograde in nature.
For such reasons, our courts have held that, “where parties make a settlement as between themselves, the court … should be very slow to make an award of costs against one of the parties”, and “unless there are compelling reasons to do so, costs in the circumstances of a settlement between parties ought not to be awarded by the court”. [9]
I agree with that approach, and am not persuaded that there are any compelling reasons to depart from it in the circumstances of this case.
[41] Even if this court were to consider “success” or “substantial success”, an award of costs would not be appropriate.
[42] Both parties claim to be successful in the proceeding. Both parties submit that their position, on certain issues, was “vindicated” according to the terms of the Agreement. This was a settlement. Neither party was “successful” as contemplated in the Family Law Rules. The fact the Applicant made the offer that was accepted by the Respondent does not necessarily make the Applicant the successful party. What can be ascertained from the written submissions is that numerous claims were made by both parties in this proceeding and the Agreement does not completely “vindicate” either party. In other words, neither party was completely successful.
[43] Even on a “substantially successful” analysis, I find that in this case, there was mixed success on the main issues:
The Respondent’s Income
[44] The Respondent primary submission is that the Applicant was not successful in establishing the Respondent’s income as claimed in the Application. However, there were numerous motions and orders requiring the Respondent to make full financial disclosure and he failed to do so requiring the Applicant to proceed to trial without such disclosure. The reasons for many of the motions are clear – the motion judges were critical of the Respondent’s failure to make the required financial disclosure. In these circumstances, it is a very hollow submission by the Respondent to suggest the Respondent was successful in establishing a lower income for the Respondent in the Agreement than what the Applicant had claimed.
[45] In these circumstances, where the Respondent has failed to make full financial disclosure, despite court orders and required the Applicant to prepare and perhaps proceed to trial on this basis, I am not prepared to say that the Respondent was successful on the income issue.
Value of the Taxi License
[46] The Applicant’s position was that the Respondent’s taxi license had a value of $ $430,000 (at one point arguing it was worth $700,000) but was eventually settled on the basis with a much lower value of approximately $150,000. Clearly, the Respondent appears to have been more successful on this issue.
Conclusion
[47] Based on the written submissions of the parties and the fact this was a settlement, I cannot find that either party was substantially successful.
Unreasonable Behaviour
[48] Family Law Rule 24(11)(b) provided as follows until June 30, 2018:
(11) In setting the amount of costs, the court shall consider,
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
[49] If success or substantial success does not entitle either party to a cost award, should there be a cost award because of the unreasonable behaviour of either party.
[50] The Respondent submits that the Applicant’s behaviour has been unreasonable in this proceeding pointing to a lack of offers from the Applicant and unreasonable positions. I disagree. The fact the Respondent made no offers is no evidence of this. The Applicant was free to make offers and failed to do so. If anything, the Respondent’s conduct, for the reasons set out herein, show that the Respondent’s conduct in this proceeding has been to be difficult, uncooperative and obstructionist in moving this matter forward. It is not the Applicant who has “dragged this litigation for years”. I reject this submission.
[51] The Respondent submits that the Applicant brought multiple unnecessary motions. My view of the reasons would suggest that the majority of the Applicant’s motions were necessary and successful. I reject this submission.
[52] The question now becomes whether there is a basis to award costs to the Applicant in this case, based on the Respondent’s unreasonable behaviour throughout.
[53] The fact that the Respondent’s behaviour in requiring the Applicant to bring motions because of his unnecessary conduct (or the Respondent bringing unsuccessful motions) where costs were dealt with does not, in my view, prevent this court from awarding costs of the proceedings (I will deal with costs of any “steps” where costs were awarded or could have been awarded below) against the Respondent for this generally unreasonable behaviour in the proceeding.
[54] The Applicant alleges that the Respondent’s behaviour has been unreasonable. In support of this submission, the Applicant points to various reasons of the numerous motions judges involved in in this proceeding. It would appear that the Respondent’s unreasonable behaviour caused many motions to be brought, most of which appear to have been unnecessary but for the Respondent’s position to “drag out” this proceeding and refusal to comply with court orders. Most positions taken by the Respondent appear to have been unsuccessful and the subject of judicial criticism.
[55] I am satisfied that the Respondent engaged in a course of conduct throughout the proceeding that reaches the relatively high threshold of unreasonable behaviour.
[56] The Respondent’s unreasonable behaviour was not limited to unreasonable motions or positions on motions. The Respondent deliberately ignored cost orders, suggesting at one point that the monies would have to be paid from the trust monies – despite the fact no such limitation or requirement was set out in the court order. Even when the court rejected this position, the Respondent has continued to fail or refuse to pay the outstanding cost order. The result was the court ordered monies be released to the Applicant from the trust monies – this is now one of the issues to be determined at the August 2018 trial.
[57] And then there is the Respondent’s long history of his failure to properly disclose his financial information to the Applicant and the experts, resulting in numerous motions by the Applicant from September 11, 2013 through the middle of 2017. The Respondent’s blame for his failure to make full disclosure on the “joint valuator” “creating doubt and confusion” is simply not a credible excuse for the Respondent’s personal failures. It is clear that the Respondent blames everyone for his own shortcomings by suggesting others misled the court, acted unprofessionally and the failings of others.
[58] I note that the Respondent’s unreasonable behaviour continued after the Agreement was executed, refusing to comply with the terms of the Agreement including the support obligations taking an unrealistic and unreasonable position that the Applicant should be paid from the Net Proceeds, when no such provision was included in the Agreement or ordered by the court. The net effect has been that the Applicant has not had the benefit of the support she needed and was entitled to post settlement.
[59] As a result of the Respondent’s unreasonable behaviour throughout the proceeding, I am satisfied that the Applicant is entitled to costs of the proceeding.
Scale of Costs of the Proceeding
[60] The court has a broad discretion to determine the scale of costs.
[61] In addition, Rule 24(8) of the FLR provides:
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[62] A finding of bad faith is a high standard requiring a clear evidentiary basis. I am not prepared to make such a finding based on the written submissions and allegations of counsel.
[63] Taking into account the divided success on the main issues and the settlement by way of the Agreement, I conclude that the Applicant is entitled to partial indemnity costs of the proceedings.
Quantum of Costs of the Proceeding
Steps in the Proceeding
[64] As set out above, costs are to be determined at each “step in the case”. This term is not defined in the Family Law Rules. However, it is clear that “steps” in a family proceeding include conferences and motions.
[65] The first issue to be dealt with is whether the amended Family Law Rules (in force July 1, 2018) apply. In my view, they do not.
[66] This portion of the family law proceeding, for which costs are sought, was completed prior to the recent amendments to the Family Law Rules, which grant jurisdiction to the courts to award costs where the court did not decide costs in any “step” in a family law proceeding regardless of whether or not costs were reserved. I agree with Bloom J. in Tsinokas v. Kucerak, 2018 ONSC 4154:
[29] In my view for me to apply the new provisions simply because I release my reasons after June 30, 2018, despite the fact that the events in question occurred long before that date and the fact that the argument concluded before that date, would be manifestly unfair to the Respondent. It would expose him to costs consequences not based on policy or logic, but on happenstance. I, therefore, exercise my discretion in the manner spoken of by the Court in C.B.C. Pension Plan, and apply the pre-July 1, 2018 principles.
[67] It would be extremely prejudicial and unfair to all parties (and could not have been in their reasonable expectation) to be responsible for additional or higher level of costs as a result of a rule change.
[68] As a result, the pre-July 1, 2018 Family Law Rules will be applied.
[69] Chappel J. in Beaver v. Hill, 2018 ONSC 3352 summarized the pre July 1, 2018 approach to a claim for costs of the proceeding in a family law context. On the issue of entitlement to costs of certain steps in the family law proceeding, the court stated:
[27] The first issue to be determined in addressing costs is whether either party is liable to pay costs. Rule 24 of the Family Law Rules sets out a number of factors relevant to the preliminary issue of liability. Rule 24(10) establishes the general principle that the court should determine liability and quantum of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs (Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.); Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.)).
[70] Costs of the “steps” in the proceeding were awarded or considered by the motions judge or the conference judge at various “steps”. It would be punitive to order additional costs for the very same steps where judges have considered and ordered costs or made no order as to costs.
[71] I find that the costs regarding the “steps” in the proceeding are not recoverable at this stage in determining the quantum of this cost award.
The Balance of the Proceeding
[72] The difficulty this court faces is that there is no breakdown of the costs claimed by the Applicant which exclude the “steps” in the proceeding.
[73] There is an inch and a half of dockets from the Applicant’s counsel with some description of the work done by counsel but in essence it would require this court to guess on a docket entry by docket entry basis as to what relates to a step and what relates to the proceeding (if that is even possible).
[74] In some case, the work performed is redacted.
[75] I am not prepared to engage in this guess work as to what docket (or part docket) relates to a “step in the case”.
[76] The Applicant’s counsel will have to attend in court before me on a date convenient to the Respondent’s counsel and approved by the Trial Coordinator’s Office.
[77] Prior to the attendance, the Applicant’s counsel must serve and file, at least 2 weeks in advance, a revised Bill of Costs removing all time and disbursement from any and all “steps in the case” (unless reserved to the trial judge).
[78] I will hear submissions on the quantum of costs of the proceedings at the next attendance.
Inability to Pay Alleged
[79] The Respondent submits that he cannot pay a significant cost award.
[80] In appropriate cases, this is a factor to consider. See Beaver v. Hill, supra at para 37:
[37] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of both liability for costs and the appropriate quantum of a costs award (Murray v. Murray, (2005), 79 O.R. (3d) 147, [2005] O.J. No. 5379 (C.A.); Tauber v. Tauber, [2000] O.J. No. 2133; additional reasons at , [2000] O.J. No. 3355 (C.A.); Cassidy v. McNeil, 2010 ONCA 218 (C.A.); Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.); M.(C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). In most cases, a party’s limited financial means will be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Snih v. Snih (S.C.J.), at paras. 7-13; Izyuk v. Bilousov, 2011 ONSC 7476, at para. 51)…..
[81] I reject the Respondent’s claim that he cannot afford to pay any significant cost award. It is not appropriate for the Respondent to fail or refuse to make complete financial disclosure as required by the Family Law Rules and engage in unreasonable behaviour and now allege that impecuniosity is a factor this court should consider to reduce the quantum of costs awarded against him.
Disbursements
[82] The Applicant will also need to delete disbursements related to any “steps in the case”.
[83] The only additional disbursement which this court is not prepared to award is the costs of the expert valuator. While the expert valuator assisted in settling this case, the fact this matter was settled strongly favours not making an award for this disbursement.
[84] In my view, requiring each party to bear their costs of the expert is reasonable and fair given the claims, the result and the resolution.
Conclusion on Costs of the Proceeding
[85] The Applicant is entitled to partial indemnity costs of the proceedings, excluding any time and disbursements relating to any “steps in the case”. The amount will be assessed at the further court attendance before me.