NEWMARKET COURT FILE AND PARTIES
COURT FILE NO.: FC-12-41735-00
DATE: 2013-10-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DONNA VASELOFF, Applicant
AND:
JOHN LEO, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
P. Zammit, for the Applicant
S. Kalra, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[1] The respondent John Leo was successful on this motion, which was brought by the applicant Donna Vaseloff.
[2] All of the relief sought by her in argument – for temporary spousal support, disclosure of the respondent’s medical records, and a restraining order – was dismissed.
[3] The respondent is presumptively entitled to costs pursuant to rule 24(1) of the Family Law Rules due to his success on the argued matters. However, as noted in the endorsement, the parties used some of the time before the motion could be heard to settle part of the motion. On consent, it was agreed that the respondent would produce further documents, which he had failed or refused to produce prior to the motion, and they agreed to split the divorce.
[4] The costs order should take into account that the further disclosure from the respondent was compelled by the motion, and the applicant should have some recovery of her costs as a result. The applicant’s counsel submits that time spent in negotiation should not be considered payable. However, this ignores that the motion served by the applicant was a package, and that the reason counsel were in attendance at the court house in the first place was the applicant’s motion, the argued aspects of which were unsuccessful.
[5] With respect to the argued matters, it was unreasonable for the applicant to bring any of these motions for the following reasons:
The evidence presented in support of her claim for temporary spousal support did not support such a request at all. This was not a “close call” case;
The request for 20 years of medical records, changed to 13 years during argument, was overreaching and irrelevant to the pleadings;
The evidence in support of the restraining order was insufficient and embellished.
[6] Further, the applicant acted unreasonably in altering her position the day prior to the motion to seek spousal support in the amount of $2,717 per month, instead of the amount of $1,192 set out in her notice of motion.
[7] Despite the weaknesses in her case she pressed on with the motion, and the respondent incurred significant costs as a result.
[8] Both parties filed facta and the preparation time was substantial given the multiple relief being requested. Given the number of issues and their importance, the time spent and the rates applied by the respondent’s counsel were reasonable.
[9] The respondent’s Bill of Costs indicates that an offer to settle was prepared and revised, but there is no evidence in the costs submissions that it was ever served. The applicant did serve an offer to settle. The failure of the respondent to serve an offer to settle, making some effort to avoid the motion, is a factor that this Court will take into account in assessing the level of indemnity.
[10] Having considered all of the factors in rule 24(11), this is a case where the applicant’s unreasonable conduct calls for higher than partial indemnity costs, but something less than full recovery.
[11] This Court orders that the applicant shall pay costs to the respondent of the motion fixed in the amount of $8,500 inclusive and payable within 30 days.
HEALEY J.
Date: October 2, 2013