Richard Niman

Following the separation of a common-law couple, a dispute arose over the ownership of their dog.

The applicant, who had adopted the dog, paid for most of its expenses, and was listed as the owner on all documentation, sought a declaration of ownership and the return of the dog after the respondent took the dog from the street.

The respondent claimed joint ownership or, alternatively, a constructive trust and a shared residential schedule.

The court found that the applicant was the sole lawful owner based on financial contributions, documentation, and primary caregiving, and declined to impose a constructive trust or shared custody arrangement for policy reasons.

On a family law motion, the moving party sought temporary spousal support, temporary child support, and security following the breakdown of a long marriage with one economically dependent spouse and one high-income payor.

The court held that the moving party established prima facie entitlement to interim spousal support under s. 15.2 of the Divorce Act, declined to conduct a detailed imputation analysis on the motion, accepted the recipient's actual income, and fixed the payor's income at $508,000 for temporary support purposes.

The court ordered child support of $3,000 monthly retroactive to January 1, 2020, and spousal support retroactive only to August 1, 2020, rejecting claims for set-off based on expenses and declining to adjust support for cross-border tax consequences without expert evidence.

A support deduction order was directed to issue.

The appellant mother challenged the Ontario Superior Court's jurisdiction over her youngest child, who was born in the U.S. and had never been to Canada, in the context of temporary parenting orders.

The Court of Appeal affirmed the motion judge's finding of jurisdiction, holding that the Superior Court had subject-matter jurisdiction under the Divorce Act because the father was ordinarily resident in Ontario.

Furthermore, the mother had attorned to the court's jurisdiction by actively participating in the merits of the underlying motions without formally challenging jurisdiction.

The appeal was dismissed, with no order as to costs due to the mother's reliance on public assistance.

The applicant father brought a motion to expand his parenting time with the parties' three-year-old child to include overnight visits, aiming for a 50/50 schedule.

The respondent mother opposed the motion, citing allegations of past family violence and requesting a mental health assessment of the applicant.

The court considered the best interests of the child under the Divorce Act, noting that while there was evidence of high conflict and some violence during cohabitation, there were no concerns regarding the applicant's parenting post-separation.

The court granted the motion in part, expanding the applicant's parenting time to include two overnights per week on an interim basis, but declined to order a 50/50 schedule to maintain stability for the child.

The parties returned to court to address temporary parenting arrangements and the appointment of a section 30 assessor.

The father and paternal grandparents sought expanded, in-person parenting time during the summer, while the mother opposed in-person visits and requested that the assessment be conducted entirely virtually.

The court found that virtual visits had been positive and ordered the mother to travel to Ottawa with the children for the summer to facilitate graduated in-person visits.

The court also appointed the father's proposed assessor, requiring in-person observation visits due to the complex family dynamics and allegations of domestic violence.

The applicant brought a motion seeking production of a lawyer's file, arguing she had an explicit or implicit solicitor-client relationship with him, or alternatively, that the respondents waived privilege.

The lawyer had acted for the respondent and the corporate respondents during a period when the parties were allegedly involved in a joint family venture involving cryptocurrency.

The court found the applicant failed to establish a solicitor-client relationship, as the few documents she relied on were insufficient to show she was led to believe he was her lawyer.

The court also found no evidence that the respondents waived privilege.

Although the motion was dismissed, the court struck significant portions of the respondent's affidavit for relying on inadmissible hearsay in breach of the Family Law Rules.

The applicant sought costs following a successful motion for interim spousal support and disclosure of cryptocurrency holdings.

The court reviewed the parties' offers to settle and found the applicant beat her offer regarding spousal support and met her offer regarding native file format disclosure.

The applicant was awarded costs of $104,533 on a substantial recovery basis.

The corporate respondents were successful on a discrete issue regarding a server and were awarded costs of $12,600 on a partial indemnity basis, to be paid from the applicant's costs award.

The applicant father brought a motion for increased and unsupervised parenting time with the parties' young child.

The respondent mother brought a cross-motion for interim spousal and child support.

The mother alleged a history of severe domestic violence and raised concerns about a potential murder-suicide, arguing that the father's parenting time must remain supervised.

The court found that while there was some evidentiary basis for the abuse allegations, there was no evidence that the father posed a risk to the child.

The court ordered a gradual transition from third-party supervision to supervision by the paternal grandmother, and then to unsupervised parenting time of 30 hours per week.

On the cross-motion, the court found the mother was entitled to interim support and ordered the father to pay $1,739 monthly in spousal support and $855 monthly in child support based on his 2018 income of $93,035, declining to impute higher income to him or any income to the mother at this interim stage.

Following a long motion regarding temporary parenting, support, and exclusive possession of the matrimonial home, both parties sought costs.

The court found the respondent wife was largely successful, having obtained primary residence, exclusive possession, and temporary support.

The court considered the parties' offers to settle, noting the wife's offers were closer to the final order.

The court also found the applicant husband acted unreasonably by refusing to vacate the matrimonial home despite having alternative accommodation.

The applicant was ordered to pay the respondent $19,200 in costs.

The moving party brought a motion for summary judgment seeking a determination that the parties separated on August 5, 2018, and an order dismissing the responding party's claims for spousal support.

The court found that the parties separated on February 20, 2019, based on the objective evidence of their continued relationship and attempts at reconciliation.

The court dismissed the motion for summary judgment regarding spousal support, holding that support issues should be determined at trial alongside property and equalization issues to avoid inconsistent findings and ensure a comprehensive analysis.

The applicant husband brought a motion seeking the immediate sale of the matrimonial home, an equal parenting schedule, a custody and access assessment, and to pay $5,000 per month in voluntary support.

The respondent wife brought a cross-motion seeking temporary exclusive possession of the home, primary residence of the children, and $10,000 per month in uncharacterized support.

The court ordered a section 30 assessment due to the high conflict and the children's behavioural issues.

The court granted the wife temporary exclusive possession of the matrimonial home and primary residence of the children, finding it was in their best interests to maintain stability.

The husband's motion for the immediate sale of the home was dismissed.

The husband was ordered to pay $7,200 per month in temporary undifferentiated support.

The wife was largely successful on a motion for interim disbursements under the OBCA, temporary spousal support, and further financial disclosure.

Both parties sought costs of the motion.

The court found the wife was the successful party and that the husband's behavior regarding disclosure was unreasonable.

After considering the parties' offers to settle and the proportionality of the fees, the court awarded the wife costs of $97,523.88, representing 65% of her actual costs.

The costs were ordered to be paid equally by the husband personally and the corporations he controls.

The moving party wife sought interim costs and disbursements of $500,000 to fund her family law and oppression remedy claims against the responding party husband, who controlled the family's closely-held corporations.

She also sought temporary spousal support and an order compelling the husband to answer undertakings and refusals from his questioning.

The court awarded $250,000 in interim costs under the OBCA as an advance against her shareholdings, finding her oppression claim had sufficient merit and she lacked liquid resources.

The court also ordered the husband to pay $3,000 per month in temporary spousal support to equalize the parties' net disposable incomes, and compelled him to answer the majority of the outstanding undertakings and refusals.

The Applicant brought an urgent motion seeking a temporary parenting order for her two young children, requesting primary care and specific access for the Respondent.

The Respondent opposed, raising concerns about the Applicant's mental health and parenting ability, initially seeking limited/supervised access, and later proposing a 50/50 schedule.

The court found the Respondent's credibility deeply flawed due to inconsistencies and strategic use of criminal charges.

The court granted the Applicant's request, returning the children to her primary care, citing the children's best interests, the pre-separation status quo, and the Respondent's failure to prioritize the children's needs post-separation.

The Applicant's request for exclusive possession of the matrimonial home was dismissed without prejudice.

The Applicant sought orders to vary a previous order to allow virtual showings and videographer access for the sale of the matrimonial home, and for carriage of sale if the Respondent did not comply.

The Respondent opposed these requests and sought to appoint co-agents for the sale.

The court granted the Applicant's request for virtual showings and videographer access with modifications, dismissing the request for carriage of sale.

The Respondent's request for co-agents was dismissed.

The court emphasized adapting marketing strategies to the COVID-19 pandemic while ensuring safety.

The parties, Adam and Amanda Rothschild, sought an urgent case conference to resolve disputes arising from their Minutes of Settlement concerning the sale of the matrimonial home.

Key issues included the selection of a listing agent, the listing date, necessary repairs, and the applicant's access to the home, all complicated by the COVID-19 pandemic.

The court addressed the interpretation and enforcement of the Minutes of Settlement in light of these unforeseen circumstances.

The applicant brought a motion for temporary spousal support of $50,000 per month following a short relationship with a high-income respondent earning $2.88 million annually.

The court found the applicant established a prima facie case for non-compensatory entitlement due to economic dependency created during the relationship.

Noting the Spousal Support Advisory Guidelines are not presumptive for incomes over $350,000, the court conducted an individualized analysis of the parties' lavish lifestyle and the applicant's short-term needs.

The court ordered the respondent to pay temporary spousal support of $25,000 per month retroactive to April 1, 2019.

The applicant sought a review of spousal and child support provisions in a separation agreement, arguing the respondent was intentionally underemployed.

The court found the respondent intentionally underemployed since separation and imputed income to her for support purposes.

The court also confirmed the applicant's income calculation and the 50/50 net disposable income split, and addressed section 7 expenses.

A further review was ordered to determine the duration and basis of spousal support entitlement.

The court issued a costs endorsement following interim motions on parenting and financial issues.

Both parties sought costs from the other.

The Applicant argued for partial costs based on success in financial matters, while the Respondent sought substantial indemnity costs, citing full success on parenting issues and the Applicant's misrepresentation of income.

The court found success to be largely divided, with the Respondent succeeding on the primary parenting issue and the Applicant on several other important financial matters.

Neither party's settlement offer was significantly more favourable, and no unreasonable or bad faith conduct was found.

Consequently, the court declined to award costs, ordering each party to bear their own. interesting_citations_summary: > The endorsement reiterates the three purposes of modern family cost rules: indemnification, settlement encouragement, and sanctioning inappropriate behavior.

It emphasizes that while success is the starting point for costs, it is not determinative, and a "contextual analysis" is required for divided success, considering the importance of issues and resources expended, rather than a simple tally.

The court exercised its discretion under Rule 24(6) of the Family Law Rules to decline a costs award where success was largely divided and no misconduct was present. final_judgement: The court declined to make a costs order, ordering each party to bear their own costs. winning_degree_applicant: 3 winning_degree_respondent: 3 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 1378 file_number: "FS-18-2429" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1378/2019onsc1378.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Serra v. Serra, 2009 ONCA 395" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html" - title: "Berta v. Berta, 2015 ONCA 918" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html" - title: "Thompson v. Drummond, 2018 ONSC 4762" url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html" keywords: - Costs - Family Law Rules - Divided success - Interim motions - Parenting issues - Financial issues - Offers to settle - Unreasonable conduct - Bad faith areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **Court File No.:** FS-18-2429 **Date:** 20190227 **Superior Court of Justice - Ontario** **Re:** Adam Rothschild, Applicant **And:** Amanda Rothschild, Respondent **Before:** P. J. Monahan J. **Counsel:** Harold Niman and Richard Niman, for the Applicant Jaret Moldaver and Jesse Rosenberg for the Respondent **Heard:** In Writing --- # Costs Endorsement [1] On January 28, 2018, I issued an Endorsement resolving a number of parenting issues involving the parties’ two children, on an interim without prejudice basis.

I also addressed a variety of financial issues, including interim child and spousal support, providing for a line of credit to be secured against the matrimonial home in order to fund costs associated with the litigation, and an order for exclusive possession of the matrimonial home. [2] The parties were unable to settle the issue of costs incurred in connection with their respective motions, and have made written submissions.

Each seeks an order for recovery of some or all of their costs from the other. [3] The Applicant concedes that he was unsuccessful on the parenting issues but maintains that he was more successful on numerous other financial issues.

On this basis he argues that he is entitled to a portion of his costs pursuant to [Rule 24(6) of the Family Law Rules](https://www.ontario.ca/laws/regulation/990114).

He seeks costs fixed in the amount of $20,000, which is less than half of his total costs incurred of $56,701.93. [4] The Respondent argues that she was entirely successful on the parenting issues which, as noted in my Endorsement, was a significant focus of the argument on these motions.

The Respondent also submits that, although success was divided on financial issues, she was forced to bring her motion for interim child and spousal support in light of what she characterizes as the Applicant’s falsely sworn representations, post separation, with respect to his income.

She therefore argues that she should be entitled to her costs on a substantial indemnity basis in the amount of $45,160.24, which is approximately 80% of her total costs of $55,526.86. [5] For the reasons that follow I decline to make a costs order in respect of these motions. # Applicable Legal Principles [6] It is well established that modern family cost rules are designed to foster three fundamental purposes: (i) to partially indemnify successful litigants; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants. [1] [7] [Rule 24(1)](https://www.ontario.ca/laws/regulation/990114) creates a presumption of costs in favour of the successful party. [2] While consideration of success is the starting point in determining costs, this presumption does not automatically require that the successful party be awarded his or her costs.

Entitlement to costs is subject to a variety of factors, including whether the successful party has behaved unreasonably, [3] whether there has been bad faith conduct, [4] and the nature of any offers to settle made by either party. [5] [8] Where success in a step in a case is divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides that the court may apportion costs as appropriate.

The determination of whether success was truly “divided” does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them.

Rather, as Chappel J. noted recently in [Thompson v. Drummond, 2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13, it requires a “contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication.” [9] Where the court concludes that success was in fact divided, [Rule 24(6)](https://www.ontario.ca/laws/regulation/990114) provides the court with considerable discretion.

In such a case, the court may decline to make an award of costs.

Conversely, the court may make an assessment as to which party was more successful on an overall global basis or on the primary issue, and to make an award of costs accordingly. # Analysis [10] As is evident from the fact that each party spent approximately $55,000 on this one-day motion, there were numerous issues in dispute.

However the most significant area of dispute revolved around the Applicant’s access to the parties’ two children and, on this issue, the Respondent was entirely successful.

In fact, I adopted her proposed access schedule in its entirety. [11] Success on the issue of child and spousal support was divided.

I determined the Applicant’s income to be $300,000, which fell between the income levels advanced by the parties.

In the result, the child and spousal support ordered fell between the amounts put forward by the parties. [12] The Applicant was successful on most of the other issue, a number of which were important.

I accepted the Applicant’s submission that a section 30 assessment was not appropriate at this time, and dismissed this aspect of the Respondent’s motion.

I accepted the Applicant’s argument that an income of $25,000 should be imputed to the Respondent, as well as his proposal to establish a line of credit secured against the matrimonial home, with the result that I dismissed the Respondent’s claim for an interim disbursement to fund her litigation costs.

I also dismissed the Respondent’s claim for an order of retroactive support, adjourning this aspect of her motion to trial. [13] Each party served an Offer to Settle.

Both Offers were reasonable.

However neither party achieved a result which was as favourable as their respective Offers.

I do not regard these Offers as materially affecting entitlement to costs on these motions. [14] Although the litigation was contentious and hotly disputed, I do not find that either party behaved unreasonably or in bad faith.

In my view, success on these motions was largely divided.

In the circumstances the most appropriate result is that each party should bear their own costs, and I so order. --- P. J. Monahan J. **Date:** February 27, 2019 --- [1] [Serra v. Serra, 2009 ONCA 395](https://www.canlii.org/en/on/onca/doc/2009/2009onca395/2009onca395.html) at paragraph 8. [2] [Berta v. Berta, 2015 ONCA 918](https://www.canlii.org/en/on/onca/doc/2015/2015onca918/2015onca918.html) at paragraph 94. [3] [Rule 24(4)](https://www.ontario.ca/laws/regulation/990114). [4] [Rule 24(8)](https://www.ontario.ca/laws/regulation/990114). [5] [Rule 18(14) & (16)](https://www.ontario.ca/laws/regulation/990114). [6] [2018 ONSC 4762](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4762/2018onsc4762.html) at paragraph 13.

The parties brought cross-motions for interim relief following their separation.

The court maintained the existing interim parenting schedule, finding that the applicant's proposed increase in overnight visits was not in the young children's best interests at this time.

The court declined to order a s. 30 assessment due to potential delay.

For interim support, the applicant's income was set at $300,000 based on his expert's report, and the respondent's imputed income was set at $25,000.

The respondent's request for a $108,000 interim disbursement was denied; instead, the court ordered the parties to secure a line of credit against the matrimonial home to fund litigation and private school expenses.

The respondent was granted interim exclusive possession of the matrimonial home.