Court of Appeal for Ontario

Date: 20230224 Docket: C69303

Miller, Zarnett and Coroza JJ.A.

BETWEEN

Miriam Assayag-Shneer Appellant (Applicant)

and

David Shneer Respondent (Respondent)

Counsel: Harvey T. Strosberg, K.C. and Erin Betts, for the appellant Julie K. Hannaford, for the respondent

Heard: October 20, 2022

On appeal from the order of Justice Kenneth G. Hood of the Superior Court of Justice, dated June 23, 2021, with reasons reported at 2021 ONSC 2075 and in a supplementary unreported endorsement on costs and interest.

Costs Endorsement

[1] By reasons dated January 11, 2023, we allowed the appeal in part and reinstated a provision of the parties’ 1999 divorce judgment that required the respondent to pay increased amounts if he defaulted in making certain spousal support payments. We awarded costs of the appeal to the appellant. We also directed that if the appellant sought costs of the proceedings below (none having been ordered by the motion judge) written submissions could be made: Assayag-Shneer v. Shneer, 2023 ONCA 14, at para. 47.

[2] The appellant asks for costs in the court below in the sum of $213,626.59, including $26,500 for the costs of two prior motions that were reserved to the motion judge. The respondent asks us to limit costs to the appellant to the sum of $91,280.

[3] The respondent submits that the costs requested by the appellant are inflated by a number of items. First, by the inclusion of costs related to the two prior motions − the respondent argues costs of these motions should not be awarded to the appellant, and in one case should be awarded to him. Second, by the inclusion of claims for time spent and disbursements for an expert’s affidavit that was not referred to by the motion judge in his reasons. Third, by the inclusion of duplicated and excessive time for the motion before the motion judge, and improperly included disbursements.

[4] We disagree with the respondent’s argument regarding the costs of the prior motions. They were reserved to the motion judge to be awarded in light of the final disposition of the matter. The appellant enjoyed the greater measure of success in the proceedings (given the result of the appeal); a portion of the costs with respect to those motions should be included in the costs awarded to the appellant.

[5] We also disagree with the argument of the respondent that the appellant is not entitled to costs relating to the expert because the expert’s evidence was not referred to by the motion judge. The precondition for recovery of a reasonable amount for an expert’s report is “that [it was] supplied to the other parties as required by the Evidence Act or these rules and that [it was] reasonably necessary for the conduct of the proceeding”: Rules of Civil Procedure, Tariff A, item 26. The fact that the motion judge did not expressly refer to the expert’s evidence does not mean this precondition was not met. The amounts claimed for lawyers’ time for consulting with the expert (about $5,500) and for fees to the expert (about $1,480) do not seem outside the bounds of reasonableness given the matters involved.

[6] As for the claims of duplication and excessive time, these are to some extent accounted for by a unilateral reduction already reflected in the appellant’s costs claim. Although both parties pointed to the amount the respondent would have claimed if completely successful in the court below, the guidance to be taken from it is limited. The bill of costs the respondent filed below (which included amounts for the prior motions) totalled about $103,500 on a partial indemnity basis, but after a 50% reduction in time spent due to changes in the respondent’s legal representation.

[7] In our view, a modest reduction in the costs claimed by the appellant is justified. The respondent did obtain some relief before the motion judge which was not disturbed on appeal, namely a reduction of the post-judgment interest. We therefore award costs of the motion before the motion judge, including the costs reserved to him regarding the motions of June 27, 2019 and July 9, 2019, to the appellant in the total sum of $180,000 inclusive of disbursements and applicable taxes.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”