Court File and Parties

Court File No.: D55500/11 Date: June 30, 2016 Ontario Court of Justice

Re: Frank Andrew Stodolak, Applicant And: Katya Rivera, Respondent

Before: Justice Melanie Sager

Counsel: Frank Andrew Stodolak, Acting for himself Alice M. Palumbo, Counsel for the Respondent

Heard On: Addressed in chambers based on written submissions

Introduction

[1] On February 17, 2015, the Applicant brought a Motion to Change the child support order of Justice Waldman dated April 9, 2014, requiring him to pay child support to the Respondent for his son Nicklas Andrew Stodolak born May 11, 2011, in the amount of $419.00 per month in table child support based on an imputed annual income of $46,452.00 and $199.00 towards the cost of child care for Andrew.

[2] The Applicant's position was that since Justice Waldman's order was premised on him returning to full time work in July 2014 after being in receipt of disability benefits since May 2013, his inability to return to work as anticipated amounted to a change in circumstances justifying a reduction in his child support.

[3] The Respondent's position is that the Applicant was relying on evidence and facts that existed at the date of Justice Waldman's order and therefore there had been no changes at all that the Applicant could rely on to seek a variation of his child support obligation.

[4] On April 1, 2016, I heard the Applicant's Motion to Change and on May 17, 2016 I released my decision granting the relief sought by the Applicant but ordering a review of his support obligation in 18 months to determine if the Applicant is making reasonable efforts to address his medical and mental health issues in order to be able to return to work.

[5] I invited the parties to make cost submissions and this is my decision in relation to that issue.

Position of the Applicant

[6] The Applicant seeks full recovery of his costs incurred between February 12, 2015 and the date of the motion in the amount of $5,868.44[1] inclusive of all disbursements and applicable taxes on the basis that:

a. The Applicant was largely successful;

b. The Respondent did not accept his offers to settle; and,

c. The Applicant has suffered "financial hardship" and "immense stress" as a result of this proceeding.

Position of the Respondent

[7] The Respondent's position is that there should be no order as to costs for the following reasons:

a) Neither party was entirely successful, success was divided;

b) The Applicant behaved unreasonably during the litigation;

c) The Applicant failed to provide financial disclosure in a timely fashion;

d) The Applicant failed to provide complete financial disclosure; and,

e) The Applicant failed to comply with court orders for disclosure in the time frame ordered by the court.

Applicable Legal Principles

[8] Rule 24(1) of the Family Law Rules provides guidance on costs in a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.

[9] Rule 24 (11) provides a further list of factors a court should consider in addressing the quantum of a costs order:

A person setting the amount of costs shall consider,

a. the importance, complexity or difficulty of the issues;

b. the reasonableness or unreasonableness of each party's behavior in the case;

c. the lawyer's rates;

d. the time properly spent on the case, including conversations between the lawyer and the party, 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.

[10] In Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement; and

3. To discourage and sanction inappropriate behavior by litigants.

[11] The court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

Application of Legal Principles to the Facts

[12] In determining the amount of costs, I have considered the following factors as set out in Rule 24 (11):

a) The issues raised in the motion were of extreme importance to the Applicant as is the case in most motions heard in family court. The issues raised in the motion were not complex;

b) The Applicant failed to provide the Respondent and the court with basic financial disclosure;

c) The Applicant failed to comply with a court order to produce medical records resulting in several unnecessary appearances before the court including a motion for third party production[2];

d) The Applicant did not serve and file his 2015 and 2016 Income Tax Returns prior to or at the hearing of this Motion to Change;

e) The disclosure requested by the Respondent from the Applicant was reasonable and should have been provided without the necessity of a court order;

f) As noted by counsel for the Respondent in her costs submissions, it is hard to determine from the Applicant's costs submissions and his bill of costs which of the costs claimed were in relation to this matter as the Applicant was also employing counsel to represent him in a case with the Family Responsibility Office[3];

g) The bills provided by the Applicant from his former counsel set out an hourly rate that is entirely reasonable and which set out appropriate amount of time spent on a Motion to Change child support; and,

h) The amount of costs being sought by the Applicant is entirely reasonable.

[13] The Applicant was largely successful in obtaining the relief he was seeking on his Motion to Change a final order. The court accepted his submission that his inability to return to work amounted to a change in circumstances which justified the change in child support he was seeking.

[14] The Applicant behaved unreasonably while the Respondent's conduct up to the date of the motion was entirely reasonable. She sought basic financial disclosure from the Applicant which he resisted claiming privacy and harassment. The Respondent was forced to bring a motion against a third party for the release of the Applicant's short term and long term disability file when the Applicant refused to provide this disclosure in the face of a court order.

[15] The following is a list of the steps the Respondent had to take to obtain full and frank disclosure regarding the Applicant's claims that he was unable to return to work:

a) The parties attended a Case Conference before Justice Carole Curtis on June 23, 2015. On that date, Justice Curtis ordered the Applicant to provide medical disclosure to the Respondent including his short term and long term disability files with Manulife Financial and his decoded OHIP claims history for 2013, 2014 and 2015. The Applicant was to provide this disclosure by August 31, 2015 and the Motion to Change was scheduled to proceed on October 29, 2015.

b) On September 8, 2015, Justice Stanley Sherr gave the Applicant an extension until September 21, 2015 to provide the disclosure ordered by Justice Curtis.

c) On October 29, 2015, the matter came before me for a half day hearing. The hearing had to be adjourned as the Applicant did not provide the court ordered disclosure from his insurance company causing the Respondent to bring a third party production motion against Manulife Financial. Manulife Financial did not oppose the relief being sought by the Respondent and the disclosure was ordered to be provided within 45 days. The Applicant was ordered to pay the Respondent's costs of the motion fixed at $250.00 and the matter was sent back for a Case Conference with Justice Curtis.

d) On January 5, 2016, the parties attended before Justice Curtis who scheduled the Motion to Change for a half day hearing on April 1, 2016.

[16] The Applicant's conduct resulted in at least two unnecessary court appearances and the delay in the adjudication of his Motion to Change by 5 months. The Applicant's conduct in the litigation is a relevant factor when considering his request for costs.

[17] In Stevens v. Stevens, 2012 CarswellOnt 15385 (ON SC), Justice Harper wrote at paragraphs 22 and 23 that "Deliberate non-disclosure is not merely unreasonable, it is an example of bad faith…One of the most significant contributors to lengthy and costly litigation is untimely and inaccurate disclosure."

[18] In assessing the Applicant's claim for costs, the court also takes into account its finding that the Applicant did not produce evidence that he is doing all he can to return to employment and ordered review of his child support obligation in 18 months.

[19] The court also notes that the Applicant is seeking costs of previous events in the litigation including his counsel's attendance on a first appearance and at the first Case Conference. The Applicant included his former lawyer's accounts which show approximately 8 hours to prepare for and attend on the Case Conference on June 23, 2015. The court cannot deal with the cost of prior steps in the litigation as costs must be dealt with at each stage. See Biant v. Sagoo (2001), 20 R.F.L. (5th) 284. Therefore, this court's costs order cannot be awarded for previous conferences as costs ought to have been addressed at the time of the conference.

[20] As a result of the Applicant's conduct throughout this proceeding including failing to provide basic financial disclosure required of a litigant seeking to reduce their child support obligation and his failure to provide court ordered medical documentary disclosure, the court declines to make a costs order in favour of the Applicant despite his success on the Motion to Change.

Order

1. There shall be no order as to costs. Each party shall bear their own legal fees and disbursements.

Justice Melanie Sager

Date: June 30, 2016

Footnotes

[1] The Applicant was represented by counsel from February 2015 until August 15, 2015

[2] The Applicant did not have counsel at these appearances while the Respondent did.

[3] The Applicant's former counsel represented him on a motion seeking a restraining order against the Family Responsibility Office.