Court File and Parties

COURT FILE NO.: FS-17-90706-00 DATE: 2020-06-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

E. (“M.”) B., Applicant Jared Teitel, Counsel for the Applicant

• and -

M.F.B., Respondent Rachel Radley, Counsel for the Respondent

Heard: In writing

Reasons for Decision

LEMAY J

[1] This is a very contentious family law case that I have been case-managing for just over a year. The most recent issues involved production, the abandonment of the Respondent’s claim for spousal support, counselling and a sealing order on the file. My reasons on the merits are set out at 2020 ONSC 2474.

[2] I am now required to fix the costs for this motion.

The Positions of the Parties

[3] The Applicant asserts that he was the successful party on this motion and should be entitled to costs pursuant to Rule 24(1) of the Family Law Rules. In support of this position, the Applicant relies on the principles set out in Rule 24(12). Although the Applicant acknowledges that “both sides engaged in unreasonable conduct in the Decision”, the Applicant alleges that this motion was necessitated by the Respondent’s conduct. The costs that the Applicant is seeking for the disclosure motion amount to $6,371.73. In addition, the Applicant seeks further costs in the sum of $1,799.41 for the spousal support claim brought by the Respondent and withdrawn prior to this motion.

[4] The Respondent also asserts that she was the successful party on this motion, and should be entitled to costs pursuant to Rule 24(1) of the Family Law Rules. The Respondent asserts that the Applicant was only successful on the issues that were not disputed, and that he was not successful on issues where there was a dispute. The Respondent also asserts that, since she was successful in her request for a sealing order, this buttresses her claim that she was the successful party. She seeks costs in the sum of $5,901.76.

Issues

[5] There are two issues that arise on the facts of this case:

a) Who was the successful party? b) What quantum of costs, if any, should be awarded?

[6] I will deal with each issue in turn.

[7] At the outset, I note that there is some suggestion by the Applicant that an Offer to Settle was made back in November of 2019. Having reviewed that Offer, it is clear to me that it is a more global offer. Although it is a severable offer, it is difficult to see how this offer would have applied to the disclosure motion. In any event, I declined to make an order respecting the spousal support claim. Therefore, the Offer to Settle is not a relevant factor in my costs determination.

Issue #1 – Who Was the Successful Party?

[8] Each side’s primary position is that they are entitled to substantial indemnity costs for this motion because they were the successful party. However, there is usually only one “successful” party in a motion.

[9] The question of who was the successful party is a very simple question. It requires the Court to consider who got what they asked for. On this point, see Scipione v. Scipione (2015 ONSC 5982), Sco-Terra v. The Corporation of the Town of Mono (2019 ONSC 1725) and ABCO One Corporation v. Pomerleau Inc. (2020 ONSC 246).

[10] Given that observation, I need to step back and consider who got what they asked for in this motion. Part of the problem with that question is the approach to this litigation (and more particularly this motion) by both sides. An example flows from the portion of my reasons on the counselling sessions with the counsellor who is working with the child of the marriage.

[11] When that portion of my reasons is read, it becomes clear that the parties were actually able to agree on what should be done about counselling. However, the parties did not reach an actual agreement themselves. Instead, I was left to piece the agreement together from the Affidavits that the parties had sworn and filed on the motions. This was not a difficult task, as the fact that the parties were agreeing on what should be done appeared to be obvious from the Affidavits.

[12] That leaves me with the more difficult question- if the parties were agreeing on a key issue, why was it left to the Court to decide the issue? The answer is, unfortunately, equally obvious. There is such a significant level of distrust between these two parties that the relationship between them has become almost unmanageable. The language in the materials that both sides filed on the motion clearly shows the distrust and disdain that these parties feel for each other. On this point, see paragraphs 28 and 29 of my reasons.

[13] This brings me to the “success” of the Respondent on her request for a sealing motion. The problem with the Respondent’s claim of success on this point is twofold. First, the Applicant didn’t really oppose the Respondent’s request for a sealing order. Second, as far as I can tell from the correspondence, the Respondent only raised the request for a sealing order when faced with the Applicant’s motion for disclosure of their daughter’s medical records in February of 2020. It was not a request that was raised in response to the Applicant’s previous requests for production of those records, which started in November of 2019.

[14] In the end, therefore, it is difficult to actually conclude that either side was particularly successful on this motion. Given that the parties both submitted Affidavits and argument over issues that were not really in dispute, it does not appear that the time spent on the motion was of any great value to either side. Therefore, the presumption of success set out in Rule 24(1) does not apply to either side in this case.

[15] I now turn to the other factors under the Family Law Rules.

The Principles Under Rule 24(12)

[16] Rule 24(12) sets out a series of factors that the Court shall consider in setting the amount of costs. In this case, the most relevant factor is “each party’s behavior.” I do not view any of the other factors as being a significant consideration in this case. As the Applicant acknowledges, I have found that both parties have engaged in conduct that I found to be troubling. The question is whether there is a party that has engaged in conduct that increased the costs in this motion.

[17] In my reasons, I have detailed the concerns I have with the conduct of both sides. I have re-reviewed those paragraphs in coming to my decision, but it is not necessary to repeat them in this endorsement. However, in my view, the conduct of the Respondent is somewhat more concerning in this case. As I noted in my reasons, between November 4th, 2019 and February 20th, 2020, the Respondent did not respond to any of the letters that the Applicant sent about the issues that ultimately arose in this motion.

[18] In addition, the Respondent put up unnecessary barriers to the Applicant’s receipt of medical documentation from the child of the marriage’s pediatrician. I set out my concerns with the failure of Respondent’s counsel to answer the correspondence from Applicant’s counsel at paragraphs 44 and 47 of my reasons.

[19] In considering the conduct of the Respondent, I am mindful of the fact that she did send a letter after the appearance before me on February 20th, 2020, acceding to the requests that the Applicant had made. This document was sent before most of the work was done on the motion, and mirrored much of what I eventually ordered.

[20] This letter is a factor that, in my view, reduces but does not eliminate the Respondent’s liability for costs in this case. In my reasons at paragraphs 17 to 23, I set out the efforts that Applicant’s counsel made to contact Respondent’s counsel to address these issues. As I have noted above, those efforts went unanswered by Respondent’s counsel.

[21] Had the efforts of Applicant’s counsel been responded to in a timely way, I am of the view that this motion might very well have been avoided. As I noted at paragraph 47 of my reasons, I have concluded that the failure to respond to the Applicant’s counsel’s communications was a decision that the Respondent made herself. It is a decision that increased the costs that the Applicant incurred, and justifies the payment of some costs.

[22] This brings me to the Respondent’s assertion that she cannot afford to pay the costs of this motion. The Respondent states that part of the reason that she cannot pay costs is the fact that she has recently expended a significant amount of money on retaining private investigators to follow the Applicant. There is no evidence of the Respondent’s inability to pay the costs of this motion, and I reject this argument.

[23] I also remind the parties, again, of what I said in my previous reasons at paragraph 71:

I also note that the parties have both raised issues about the costs of the litigation in their materials. That is not something that the Court can control. It is something in the control of the parties. I strongly encourage them to consider resolving the underlying litigation.

[24] The final issue is the Applicant’s request that the costs of the abandoned spousal support claim be fixed and made payable forthwith. I acknowledge that the Family Law Rules envision exactly this type of remedy being provided. However, in this case it is almost impossible to extricate the costs of the spousal support claim from the other costs of the action.

[25] I acknowledge that Mr. Teitel has broken out the costs related to spousal support in the bills of cost that he has provided. However, having reviewed those bills of costs, it is not clear to me how this time was subdivided. The subdivision of this time is best left to the trial judge, who will have a complete picture of all of the time spent on the issues, and can more accurately make the determination that Mr. Teitel seeks. The Applicant’s request in this regard is deferred to the trial judge.

Conclusion and Order

[26] For the foregoing reasons, I order as follows:

a) The Respondent is ordered to pay the Applicant the sum of $1,000.00 inclusive of HST and disbursements within thirty (30) days of the release of these reasons. b) The Applicant’s request for costs for the abandoned spousal support claim is deferred to the trial judge.

LEMAY J Released: June 15, 2020