Kovacevic v. Kovacevic, 2014 ONSC 1869

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-72697-00
DATE: 2014 03 24

RE: TAMMY KOVACEVIC v. BOBAN KOVACEVIC

BEFORE: EMERY J.

COUNSEL:
Self-Represented, for the Applicant

John W. Bruggeman, for the Respondent

COSTS ENDORSEMENT

1I invited the parties to make submissions on costs, if requested, at the end of my endorsement on February 18, 2014. I have now received written submissions on costs from Mr. Bruggeman, lawyer for the respondent husband and moving party who seeks costs of the motion on a full recovery basis in the amount of $17,420.10. I have also received costs submissions from Tammy Kovacevic dated March 4, 2014 in which she seeks her costs of the motion in the amount of $21,397.92. The cost submissions filed by Mr. Bruggeman in reply are dated March 5, 2014 to round out the package.

2The motion of the respondent heard on February 18, 2014 requested an order that the applicant answer certain undertakings that were outstanding from her questioning on June 6, 2012 and an order that the applicant make herself available for further questioning. Each of these steps should have been completed by certain dates under the timeline ordered by Justice Price on June 25, 2013. For the purpose of the motion, those steps and due dates were as follows:

1. For the parties to complete disclosure, including answers to undertakings and refusals by July 30, 2013

2. Leave to bring motions for disclosure by August 31, 2013

3. If further examinations are required, to be held by August 30, 2013

4. Any motions arising from those further examinations to be brought for hearing by October 31, 2013

5. Listing the case for trial at the blitz sitting in Brampton beginning on May 12, 2014 for an estimated 6 days.

3The motion also raised an issue about the applicant’s failure to submit the respondent’s invoice from the Trillium Health Care Centre to her insurer for payment. That invoice had been submitted and paid by the time the motion was heard.

4The respondent husband took the position on the motion that the applicant wife had given five undertakings that remained outstanding as of July 30, 2013. In his cost submissions, the respondent describes the difficulty his lawyer encountered with serving motion materials in time to have this motion heard by October 31, 2013 under the order made by Justice Price. He attributes bad faith to the applicant for frustrating these efforts until she could finally be served.

5On November 7, 2013, the parties appeared before Justice Herold on a normal motions day in Brampton. Justice Herold considered this to be a long motion and adjourned it to be heard on a long motions date. Justice Herold also expressed concern that the motion could wreak havoc with getting the case ready to proceed to trial in May 2014. Justice Herold awarded costs of the attendance that day in the cause to the respondent.

6The applicant did not answer any of the five outstanding undertakings until she delivered her responding affidavit on January 31, 2014. In that affidavit she purported to answer undertaking numbers 22 and 25. Part of those answers included limited production of the bank records for her own line of credit records at CIBC. On February 4, 2014 she delivered the remaining CIBC records, despite her previous position that she could not obtain all of those records. The respondent counts this as another act of bad faith on the applicant’s part.

7On February 5, 2014, the applicant reversed her position on undertaking number 19 and gave an answer to satisfy that undertaking. That left undertaking numbers 23 and 24 unanswered. It was conceded by the respondent on the motion that these two undertakings are essentially one undertaking that required the applicant to use her best efforts to obtain records for the joint bank account in the names of both parties, or to give her written consent for the respondent to seek those records from the bank directly.

8Central to the issue of costs is the order made by Justice Price on June 25, 2013. The timetable encased in that order required the parties to take steps by certain dates or face a motion to enforce their rights under the Family Law Rules.

9The respondent states that he has incurred the expense of his lawyer’s time to exchange 25 letters on issues related to this motion with counsel for the applicant, the drafting or review of 5 affidavits, multiple court attendances and the preparation and filing of the factum and amendments to it as information was provided up to the date the motion was heard. I understand the respondent husband’s position to be that all of this activity was made necessary because of the applicant’s non-compliance with the timetable set by Justice Price.

10I consider it relevant with respect to entitlement to costs that the applicant gave the outstanding undertakings at her questioning on June 6, 2012, and yet did not answer three of the five remaining undertakings until January 31 and February 4, 2014 respectively. By that time, hearing of the motion was imminent. The two undertakings that remained unanswered when the motion was heard boiled down to the undertaking regarding the disclosure of the joint bank account described above. The applicant had provided her consent for Bank of Nova Scotia to release that information. I ordered the respondent through his counsel to request the necessary documents from Bank of Nova Scotia on the terms set out in my endorsement to answer undertakings 23 and 24.

11I note that Justice Price did not specifically order the applicant to submit to further examinations on answers given to undertakings, but his order provides that the further examinations of either party, if further examinations were required, be held by August 30, 2013. Since the applicant had yet to answer the five undertakings by July 31, neither examination took place. Now that those undertakings have finally been answered, I permitted more questioning of the applicant limited to questions related to the school or employment status of any child of the marriage, and any further financial disclosure. I ordered that questioning to take place on Friday, February 28, 2014. I am advised the further questioning of the applicant took place on that date pursuant to that order.

12There remains the relief sought on the motion for the applicant to submit the respondent’s medical invoices to her benefit plan on a timely basis. I note from the affidavit sworn by the applicant on January 31, 2014 that she had done so by that date, and that insurer has paid the invoice. The respondent points to the applicant’s refusal to submit that invoice on his behalf after he provided the invoice to her on June 2013 as another instance of bad faith. I consider this issue to be a part of the larger case and that any costs related to it are reserved to the trial judge.

13I have the discretion with respect to the costs in a proceeding or a step in a proceeding to determine by whom and to what extent costs shall be paid under section 131(1) of the Courts of Justice Act. This family case is a proceeding and the motion I heard on February 18, 2014 is a step in that proceeding and that gives me the basis to make the following costs order.

14I consider the respondent to have been more successful on this motion than the applicant because the motion was necessary to compel the applicant to answer undertakings 19, 22 and 25 after July 31, 2013. The motion clearly motivated the applicant to cooperate with respect to answering combined undertaking 23 and 24 and to consent to the further questioning that became part of my order. The respondent has therefore established his entitlement to the costs of the motion. However, I do not find the conduct attributed to the applicant to have been so egregious as to amount to bad faith, which is a necessary factor for Family Law Rule 24(8) to apply in order to award costs on a full recovery basis.

15I find that a great deal of work has gone into the preparation of this motion, including the correspondence and affidavits described above. This work and related expense could have been avoided had the applicant and her counsel at the time cooperated with making the timely disclosure of information required by the Family Law Rules. The applicant ought to have paid particular attention to the carefully crafted terms of the order made by Justice Price designed to assist with making the case ready for trial by the May 2014 sittings. Resistance to the court process carries with it risk; acting within reason, its own reward.

16That said, it is unfortunate the description of the work by counsel for the respondent on the motion and time allocated for components of that work is not broken down in his costs outline. I cannot tell what parts of the 33.8 hours was taken up by what document preparation, and what time was apportioned for work up to certain dates. This breakdown would have been helpful to measure what the respondent’s costs would have been up to certain points in time when the applicant made part compliance.

17I am therefore applying the principles in Zesta Engineering Ltd. v. Cloutier [2002] 25577 that the costs I award should reflect what the court views as a fair and reasonable amount the unsuccessful party should pay, rather than an exact measure of what the motion actually may have cost the moving party.

18Upon considering all of the factors under Family Law Rule 24 (11), I hereby award $10,500 to the respondent for costs on a partial indemnity basis, inclusive of disbursements and HST. This includes an amount for costs fixed at $500 for the attendance before Justice Herold on November 7, 2013. The amount awarded is also approximately one-half of the amount the applicant was claiming against the respondent for the same motion. Because she has made a claim of her own for a specific amount, the court is able to assess what the applicant should have reasonably expected to pay if unsuccessful under the principles set out by the Court of Appeal in the case of Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634. However, given that my order gives control of obtaining the necessary bank documents from the Bank of Nova Scotia to the respondent based on the consent of the applicant for retrieval of those bank statements and the fact that the applicant gave her consent to the further questioning part of my order, I order that the applicant has until June 30, 2014 to pay those costs so that she is not impeded from preparing for and advancing to trial in May.

Emery J.