Millington v. Tcherniavsky, 2013 CanLII 38804 (ON SC)

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-06-33009-01
DATE: 2013-06-12

RE: Peter R. Millington and Katherine M. Tcherniavsky

BEFORE: Justice D.L. Edwards

COUNSEL: Robert Fernandes, for the Applicant
Mark Demeda, for the Respondent

COST ENDORSEMENT

1This is a decision on costs. The case was heard over four days beginning on March 25, 2013 and ending on April 3, 2013. I released Reasons for Judgment on May 6, 2013. I reserved my decision on costs, pending receipt of written submissions from the parties. The submissions have been received and reviewed.

2The primary issue at trial concerned child support for the parties’ child, Connor Royce, who was born August 30, 1994. The applicant father brought a motion to vary the child support ordered by the court for the period commencing January 1, 2005 and ending January 1, 2011. In addition, he sought child support from the respondent mother for the period commencing January 1, 2011.

3Both motions were dismissed and the arrears of child support were fixed as of October 24, 2012 at $34,618.00.

4There is a presumption under Rule 24 that a successful party is entitled to the costs of the case. If the successful party has behaved unreasonably during the case, that party may be deprived of all or part of the party’s own costs, or be ordered to pay all or part of the unsuccessful party's costs.

5If a party has acted in bad faith, the court may order costs on a full recovery basis and order the costs to be paid immediately.

6Factors that shall be considered in determining a cost award include the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party's behavior; the lawyer’s rates; and the time properly spent on the case.

7Rule 24(10) provides that at each step a judge shall decide whether a party is entitled to costs and set the amount of the cost.

8The respondent seeks costs not only for the trial, but also with respect to a motion dated May 15, 2012, for which no costs were ordered.

9The respondent has submitted a Bill of Costs on a full recovery basis in the total amount of $31,605.60.

10The respondent asserts that the applicant acted in bad faith by:

a) failing to provide disclosure in a timely fashion or not at all;

b) filing sworn financial statements which did not accurately or honestly state the applicant's true income;

c) pursuing his claim that his income had dropped for medical reasons despite having received three letters written by two different doctors which failed to substantiate his claim;

d) obtaining an order from Justice Price for third-party disclosure based on his inability to afford disclosure shortly after purchasing two new E-bikes.

11Further, the respondent submits that the applicant acted unreasonably by submitting an offer to settle for the all-inclusive sum of $2,000.00.

12Finally, the respondent asserts that the lawyer’s rates are modest and that the time spent on the case is reasonable.

13The applicant submits that no cost should be awarded for any interim steps including the May 15, 2012 motion, and asserts that the cost should be no greater than $21,327.25.

14Further, the applicant submits that he did not act in bad faith and that unreasonable conduct is not to be equated with bad faith conduct. He asserts that the mother was provided with authorization to obtain access to all of the applicant's bank accounts and that she had the financial resources to do so.

15The applicant notes that the respondent did not make an offer to settle and submits that, at most, the respondent should be entitled to 50% of the costs that the applicant asserts are applicable to the trial. Therefore, at most, the respondent should only be entitled to $10,663.62.

16Finally, the applicant submits that, as he is currently disabled and has no reasonable prospect of returning to the workforce, this factor should be considered in making the cost order.

17Accordingly, the applicant requests that each party bear his or her own costs, or alternatively, a nominal cost order against the applicant of no more than $5,000.00 be ordered.

18First, I find that the costs associated with the May 15, 2012 motion should not be part of the cost award for the trial.

19Second, I am satisfied that the hourly rate of the lawyer and the time spent is appropriate when considering the nature of the matter at trial.

20Third, although I do not find that the applicant acted in bad faith, I do find that the difficult conduct of the applicant and his less than forthright testimony contributed to the length of the trial and the associated costs.

21Bearing in mind the foregoing, and in the exercise of my discretion, I award costs fixed in the amount $16,000.00 to be paid by the applicant to the respondent. As requested by the respondent, there shall be no order for the enforcement of costs by the Family Responsibility Office.