BARRIE COURT FILE NO.: FC-08-225-0001
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARVIA LYNNE KHAN, aka MASSEY KHAN, Applicant Mother
AND:
MOHAMMAD ALI KHAN, Respondent Father
BEFORE: M. P. EBERHARD
COUNSEL: T. Owen, Counsel, for the Applicant Mother
A. Cassolato, Agent, for the Respondent Father
HEARD: Motion heard August 23, 2012
COSTS ENDORSEMENT& SUPPLEMENTARY dISCLOSURE ENDORSEMENT
1There were cross motions on August 23 rd 2012. I broke down the issues in paragraphs 4-10 of my decision: child support to this date; ongoing child support; continuing issues of disclosure already ordered of the Respondent Father and further disclosure requested by each party; post secondary education expenses for Madelaine; lien on property owned by a non-arm’s length third party to secure child support.
2The lien issue was advanced in the litigation by Minutes of Settlement with counsel for the Third Party which the Respondent Father did not oppose.
3The Applicant Mother succeeded in all issues though the method I chose was not entirely as requested and I gave the Respondent Husband the benefit of the doubt on the impact of injuries from a motor vehicle accident and allowed him a brief respite from full support obligation.
4I directed that the parties could address costs and the remaining disclosure issue by written submissions provided to the judicial secretary in Barrie: The Applicant Mother by September 10, 2012 the Respondent Father by September 17, 2012 and reply by September 20, 2012. Brevity is required.
5I had specified they were to submit a chart of the disclosure ordered but not yet made as well as further disclosure requested upon which they seek a disclosure order. I had heard argument on the relevance. I particularly indicated my expectation that the process of preparing a chart should generate much of the disclosure sought and it should become unnecessary in the intervening time for me to have to adjudicate on this issue.
6I have reviewed these submissions.
7The Applicant Mother claims full indemnity of $16,520, supported by accounts rendered, and properly subtracting an appearance for which costs were already ordered and appropriately subtracting time in relation to a settlement meeting.
8The Respondent Father claims $1,000 for success on the small respite and the difference between the relief that the Applicant Mother moved for and the manner in which I provided the relief. I say with all sincerity that the skill of counsel has been brought to bear in the best tradition of advocacy employing “the best defence is an offence” technique. Mr Cassolato is demonstrating to his client that he will tenaciously pursue every possible argument to contain the devastation inherent in litigation. This should help a sensible client trust in his advice as to the reality of his legal positions and assist in achieving resolution.
9However, the excellent argument does not have a basis in the history of the file. Mr Owen has, for his part, very thoroughly detailed steps taken by the Respondent Father, before he had the benefit of the realistic and organizing efforts of current counsel, which have delayed and diverted this case from the path of just resolution.
10The comments in my reasons predict my finding on costs. Sharpe JA gave a helpful summary of overarching cost principle stating:
1…modern cost rules are designed to foster three fundamental purposes:
To indemnify successful litigants for the cost of litigation;
To encourage settlements; and
To discourage and sanction inappropriate behaviour by litigants.
Fong V. Chan (1999), 46 O.R. (3d) 333 (C.A.)
11Here, the Applicant Mother was successful in resisting the Respondent Father’s motion and achieved remedies on all the issues raised in her own; the courts response to obvious areas that should have been resolved such as the use of the available RESP for Madelaine’s immediate need for post secondary education funds should encourage a more realistic approach in the future; and behaviour addressed in my reasons such as delay in disclosure and material non-disclosure must be discouraged and sanctioned.
12The factor which mediates my need to sanction is that as a term of adjournment support was paid and significant arrears did not build up. The cost of peace, Mr. Cassolato called it. I call it wise. The diversions were not effective, so the denunciation of the court is not required.
13Having regard to the subtractions already made by counsel for the Applicant Mother, the bill of costs does not require substantive trimming. The Applicant Mother should not be required to bear the costs arising from the need to dispute the refraining order quantum obtained by material non-disclosure. The offer served July 26, 2012 by the Applicant Mother narrowed the issues and she achieved those remedies in the decision. Rule 24 applies after that.
14I am fixing not assessing costs. I assume a small margin of error and overestimate.
15The Respondent Father shall pay costs to the Applicant Mother of $16,000.
16As to the disclosure requests the Respondent Father seeks credit card statements; documentation concerning the Applicant Mother’s post-separation purchase of 20 Simmons Cres.; bank statements; and accounting of money flowing through credit cards and bank accounts.
17In her reply, the Applicant Mother provides explanations. I do not assess the adequacy of the explanations. These explanations can be formalized through Request to Admit procedures. That may generate the need for specific documents to support the assertion made but counsel, not I, can go through the exercise of looking through what has already been put forward.
18As to bank and credit card statements, I have not been directed to a particular property issue to which the requests may relate. There is no spousal support issue. The issue is child support and a crucial question is the quantum of the Respondent Father’s income from self employment. The only potential issue requiring examination of the Applicant Mother’s income would seem to be limited s7 claims. Disclosure has been made for periods around separation. For child support purposes I am not persuaded that statements predating separation by more than a modest period have relevance. There is a continuing income disclosure obligation on the Applicant Mother to calculate s7 contributions, but is there any assertion of an undisclosed income source that would justify disclosure of her current spending patterns? Without such an assertion I am not persuaded that she need provide more than income tax returns and up to date financial statements as required by the rules.
19Business documentation relating to her income from his electrical business should be available to the Respondent Husband. If something cannot be obtained by the Respondent Father without her authorization, she shall give such authorization.
20As to the disclosure requests the Applicant Mother seeks I have examined items set out in the chart of outstanding disclosure filed. The categories of disclosure and the purpose of the items to support that category seem quite conventional where the issue in question is income from self employment. All are relevant. All must be disclosed. I cannot know the volume of AEL invoices and additional AEL records. I suggest counsel consider a summary and direct inspection first followed by such copying as may then be necessary. Until the court knows the extent of the documentation it is difficult to order the most expeditious method but the obligation of disclosure is beyond question.
21It is not clear to me from the submissions whether counsel have got together yet to determine what is really missing. I expect this will follow, just as I was optimistic in my decision that “I particularly indicated my expectation that the process of preparing a chart should generate much of the disclosure sought and it should become unnecessary in the intervening time for me to have to adjudicate on this issue.
EBERHARD J.
Date: October 4, 2012