Court File and Parties

Court File No.: 45634-11
Date: 2012-06-22
Superior Court of Justice – Ontario

RE: Alison Jane May, Applicant

and

Peter John May, Respondent

Before: The Honourable Mr. Justice G.A. Campbell

Counsel:
Matt Milczarczyk, for the Applicant
Peter John May, Self-represented Respondent

Heard: April 26, 2012

Written Cost Submissions Filed

Endorsement on Costs

[ 1 ] It is very difficult for Mr. May to challenge counsel’s submission that, pursuant to Rule 24 (1), the Applicant achieved complete success on her motion and that Mr. May was wholly unsuccessful on his cross motion. Unfortunately, no formal Rule 18 Offers to Settle were exchanged.

[ 2 ] However, there were a few e-mails exchanged between Mr. May and counsel between March 13 and March 20, 2012, after Ms. May brought her Notice of Motion for disclosure, well after it was first returnable on February 16, 2012.

[ 3 ] On November 14, 2011, Gordon J. had generically ordered “Disclosure as per Rules”. Some of that disclosure dribbled in over the next few months and some disclosure, mandated by the Rules was refused outright. In order to force the disclosure already ordered, Ms. May first threatened to bring a motion, then concluded that without such motion, full and complete disclosure would either not be forthcoming or would be delayed such that her claim for spousal support, inter alia would be, for the immediate future, effectively thwarted or avoided.

[ 4 ] Of course Mr. May certainly has a right to vigorously contest the claims advanced against him, and that he did. Full and timely disclosure is an essential factor in every family law dispute. Ms. May’s various claims for support and equalization could not proceed until that disclosure had been made and in effect, Mr. May’s delay affected that result. Since full and timely disclosure did not occur, Ms. May was thereby forced to incur significant expense in her successful quest for appropriate and timely financial disclosure and interim relief.

[ 5 ] In his cost submission, Mr. May makes much of his ‘business year end’, which is April 30.

[ 6 ] He now argues that he was always willing to make full and complete disclosure but that counsel was unwilling to reasonably wait for same until after his new business year end. Indeed, Mr. May attaches two e-mails in May of this year ( after the motion was argued) to show that he has produced his T1s for January 1 to April 11, 2011 and his “accounts” as ordered. He also lists various other productions that he sent to counsel in May 2012.

[ 7 ] In sum, Mr. May’s argument is that had counsel acted in a more reasonable fashion and waited for another month or so, all necessary disclosure would have been forthcoming from him and the expense of the motion attendance avoided.

[ 8 ] In hindsight, it would appear that he has a point. But how was Ms. May (given Mr. May’s previous behaviour and “reluctance” to disclose) to have believed that, without another explicit court order, Mr. May would in fact comply with the family court Rule regarding early and complete disclosure? In light of the events that brought on the end of their marriage and Ms. May’s now complete distrust of Mr. May and his assertions, I find that forcing the issue by motion was entirely reasonable in the circumstances.

[ 9 ] I am to view the issue of costs of any motion in a flexible and balanced way, recognizing the wide discretion afforded by R. 24 of the Family Law Rules , O. Reg. 114/99: Ostapchuk v. Ostapchuk , 2003 57399 (ON CA) , 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). Mr. Milczarczyk’s client is entitled to her costs, but the quantum to be paid must reflect the factors in R. 24 (11) viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA) , 67 O.R. (3d) 181 (C.A.). The costs award, as well, must represent a fair and reasonable amount that should be paid by Mr. May rather than any exact measure of the actual costs to Ms. May: Zestra Engineering Ltd. v. Cloutier , 2002 25577 (ON CA) , [2002] O.J. No. 4495 (C.A.).

[ 10 ] I am required to make an assessment, in a summary manner, of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA) , 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). My costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown , 2002 CarswellOnt 2666 (Sup. Ct.) .

[ 11 ] I find that a balanced, fair costs award to Ms. May to reflect her significant success is $2,000, inclusive of recoverable disbursements and H.S.T.

[ 12 ] 60% of those costs were incurred with respect to the order for support. They are “legal fees or other expenses arising in relation to support or maintenance” and, as such, should be enforceable by the Director. See s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 , S.O. 1996, c. 31 (as am.); Wildman v. Wildman (2006), 2006 33540 (ON CA) , 82 O.R. (3d) 401 (C.A.).

G.A. Campbell J.

Released: June 22, 2012