Court File and Parties

Ontario Court of Justice

Date: April 24, 2019

Court File No.: Simcoe 79/14-01

Between:

Olga Knocke Applicant

— AND —

Peter Knocke Respondent

Before: Justice A.D. Hilliard

Reasons for Judgment released on: April 24, 2019

Counsel

Justine Lyons — counsel for the applicant(s)

Deborah Ditchfield — counsel for the respondent(s)

Judgment

Hilliard J.:

[1] This is a decision on the issue of costs arising from my judgment released on March 25, 2019.

[2] Although at the conclusion of the argument on the motions in this matter, counsel had anticipated making oral submissions on the issue of costs, the issue of costs was ultimately addressed by counsel through written submissions and no further in person attendance by the parties was required.

[3] The Respondent's counsel submits that the Respondent is entitled to full indemnity costs in this matter as he was "spot on" with his offer to settle made to the Applicant and my judgment on the motions resulted in the Respondent being "the successful party".

[4] The Applicant's counsel submits that there should be no order as to costs as there was divided success in the matter.

[5] The Ontario Court of Appeal outlined the approach to costs as follows at paragraph 8 of its decision in Serra v. Serra:

Modern costs rules are designed to foster three fundamental purposes: (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: Fong v. Chan (1999), 46 O.R. (3d) 330, at para. 22.

[6] The Court must also consider Rule 24(6) – Divided Success and 24(12) Setting Costs Amounts in determining how costs are to be apportioned.

[7] The Applicant's costs submissions correctly point out that in this matter there were two (2) motions that were before the Court and argued in tandem: the Applicant's motion to amend her Response to Motion to Change and the Respondent's motion for summary judgment.

[8] The Respondent took the position at the argument of the motion that the Applicant should not be given leave to amend her Response to Motion to Change to include a request for retroactive and ongoing contribution to s. 7 extraordinary expenses. The Respondent's argument was that he would be significantly disadvantaged if the Applicant was permitted to amend her pleadings some 32 months after her initial Response to Motion to Change was served and filed. The Respondent's position on the motion was that there was clear prejudice to his position if the amendment was allowed and that such prejudice could not be compensated by costs, an adjournment, or both.

[9] I found in my reasons for judgment granting the Applicant's request for leave to amend her pleadings that the Respondent clearly had enough notice of the relief the Applicant was seeking to instruct his counsel to prepare fulsome materials in support of a motion for summary judgment.

[10] In assessing the reasonableness of the parties' behaviour in relation to the issues in this case, I find that it was not reasonable for the Respondent to oppose the Applicant's request to amend her pleadings, requiring a motion to be argued on the issue.

[11] It is clear from the Respondent's submissions on the issue of costs that the parties were negotiating and exchanging offers to settle that included the issue of the children's extraordinary expenses as far back as January 8, 2018, as evidenced by the Offer to Settle of the Respondent appended as Tab B to the Respondent's initial costs submissions brief.

[12] I accept that the Respondent made multiple offers to settle, all of which would have put the Applicant in a better position than after judgment was rendered on the motions. By virtue of those offers to settle which were served, one of which remained open for acceptance at the date of the hearing of the motions, I find that the Respondent was somewhat more successful than the Applicant overall.

[13] I do not, however, accept the Respondent's submission that this is a case for full indemnity costs. Had the Respondent consented to the Applicant's request to amend her Response to Motion to Change and then brought forward a motion for summary judgment to dismiss the Respondent's claims and been successful, that would have placed the Respondent squarely within Rule 24(1) as the successful party, entitled to at least substantial indemnity costs given the offers that were served upon the Applicant.

[14] I find that there was divided success in this matter as the Applicant had to bring a motion to amend her pleadings, on which motion the Applicant was ultimately successful despite the Respondent's opposition.

[15] The issues that were argued on the motions were not complex. Most of the issues on the Motion to Change had previously been resolved by way of a consent filed with the Court in July 2018.

[16] I do not find that the Applicant's argument of mutual mistake raised at the motion argument amounts to bad faith. Rather I find that both parties in this matter engaged in behaviour that was unreasonable and resulted in additional and unnecessary litigation costs. The Applicant should have been more timely and forthcoming in her financial disclosure to the Respondent and the Respondent should have consented to the Applicant's request to amend her pleadings.

[17] In all of the circumstances and for the reasons set out above, I find that the appropriate amount of costs to be awarded is $2,500 payable by the Applicant to the Respondent.

[18] I decline the Respondent's request that the costs award be enforced by the Family Responsibility Office.

Released: April 24, 2019

Signed: Justice A.D. Hilliard