SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1373/01-02

DATE: April 3, 2014

RE: Carol Lesley Hooper (sometimes known as Carol Lesley Fretwell), applicant

AND:

William Robert Fretwell, respondent

BEFORE: MITROW J.

COUNSEL:
Donald W. Kilpatrick for the applicant

William Robert Fretwell in person

HEARD: written submissions filed

COSTS ENDORSEMENT

[1] On October 25, 2013, I released an endorsement on the applicant’s motion to dismiss the respondent’s motion to change. That relief was granted.

[2] Pursuant to the order, written costs submissions were received from the applicant dated January 9, 2014 and the respondent’s written costs submissions were received by letter dated January 27, 2013. At the applicant’s request an extension was granted to file the costs submissions.

[3] The respondent’s motion to change was dismissed because of the respondent’s failure to provide court-ordered disclosure including personal income tax returns, notices of assessment and business financial statements.

[4] In 2012, the respondent commenced a motion to change child support and spousal support and to reduce support arrears. The applicant filed a response to the motion to change.

[5] The applicant also filed a motion seeking various relief including a request that the respondent’s motion to change be dismissed. It was only this latter request that was argued before me.

[6] The applicant relies on the respondent’s conduct in past family law litigation where the respondent failed to provide financial disclosure. The details as to the past litigation history are discussed in the endorsement and are not repeated here.

[7] The applicant submits that her total legal expenses incurred in the motion to change and the applicant’s response to motion to change are $19,035.76, of which over $16,000 is fees. The applicant submits that of this amount, 75 percent can be reasonably attributed to the motion to change brought by the respondent; namely, the sum of $14,276.82. The applicant requests that the respondent be ordered to pay this amount inclusive of fees, assessable disbursements and HST.

[8] The respondent’s brief written costs submissions request that the court should “throw out” the applicant’s costs submissions because they were late. As indicated earlier, a time extension had been granted, albeit over the respondent’s objection. For the purpose of these reasons the respondent’s costs submissions are interpreted as a request that no costs should be ordered.

[9] The applicant’s submissions refer to an offer to settle dated October 11, 2013. The submissions refer to a copy being attached, but a copy was not attached. The description of the offer set out in the applicant’s submissions is that it was an offer to resolve all issues in the motion to change including the applicant’s response to the motion to change; that the offer fixed support arrears at $60,000 payable at $500 a month and required the respondent to contribute to the education expense of the youngest child.

[10] The Director’s statement of arrears, taking into account adjustments made subsequent to the release of my endorsement is included in the applicant’s submissions, but the submissions state that the recalculation is not correct.

[11] Without being able to review the offer, and given the admission that the arrears calculation is incorrect, I cannot find that the applicant has demonstrated that the order is as favourable or more favourable than the applicant’s offer, and hence I find that the automatic cost consequences as set out in rule 18(14) are not engaged.

[12] I have considered the factors in rule 24(11).

[13] The respondent’s motion to change was not complex. The difficulty was the respondent’s failure to provide financial disclosure to support his request to lower child support and reduce or eliminate support arrears.

[14] In relation to conduct, I find that the respondent’s conduct in failing to provide the requisite financial disclosure as required by the rules, and a court order, was unreasonable. However, I am not prepared to find that the respondent’s conduct, on the facts of this case, amounts to “bad faith”. Bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of a dishonest purpose or moral obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill-will: the foregoing being part of a discussion by C. Perkins J. as to the meaning of “bad faith” in S.(C.) v. S.(M.), 2007 20279 (ON SC), 2007 CarswellOnt 3485 (S.C.J.) at paras. 16, 17, affirmed 2010 ONCA 196, 2010 CarswellOnt 1493 (C.A.) at paras. 10, 11. I adopt the discussion involving bad faith in S.(C.) v. S.(M.).

[15] I find that the respondent lacked the requisite intent to elevate his failure to provide financial disclosure to “bad faith”. The respondent did provide some reasons and excuses for his failure to make the requisite financial disclosure, but the reasons and excuses were not accepted. In assessing costs, I take into account the respondent’s unreasonable behaviour.

[16] The rates used by the applicant’s lawyer were reasonable. The applicant’s written submissions included time dockets. However, in relation to time spent on the case I do have some difficulty. This case was not complicated, yet the time allocated to pleadings seems to be on the high side. For example, the first page of the time dockets reflects over $2700 simply for pleadings preparation. Further, the time dockets reveal various steps including a settlement conference and case conference. The applicant has not included in her written submissions any information as to whether the costs of those steps were preserved by orders made at conference attendances. Not having this information, I am not prepared to consider costs attributable to those steps: see Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 ( C.A.). I also find that the applicant’s reduction of 25 percent is on the low side, and insufficient, to factor out those fees that are not related to the motion before me.

[17] I find that the disbursements claimed (being a little over $500) are reasonable, but I do take into account that those disbursements are for all of the work done.

[18] The order provided that the applicant was at liberty to obtain a date from the trial coordinator for an uncontested hearing regarding the balance of the claims made in the applicant’s motion. Accordingly, any costs that have been incurred by the applicant in relation to those other issues raised in her motion are not costs that are assessable at this time.

[19] The respondent did achieve some relief claimed in his motion to change. The order eliminated all spousal support arrears and provided that the respondent will have no further obligation to pay spousal support to the applicant. Also, for two of the children, child support was terminated effective May 31, 2011. It is true that the applicant consented to this relief, and hence the issues concerning that relief did not occupy substantial time, but the fact remains, and I do take into account that the respondent did achieve some success.

[20] The overriding principle in assessing costs is one of reasonableness. The reasonable expectation of the party being ordered to pay costs must be considered. In the circumstances I find that the sum of $6500 is reasonable on an all-inclusive basis.

[21] I order that the respondent shall pay to the applicant forthwith her costs of the motion fixed in the amount of $6500 inclusive of HST and assessable disbursements. I further order that the full amount of the costs as ordered constitutes a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996 and that this amount is enforceable by the Director.

[22] In her written submissions the applicant requests that I be seized of these proceedings so that the matter of costs with respect to both parties’ claims may be properly dealt with. Given that I am aware of the offer that was made to settle this matter on a final basis it is my view that I should not hear the balance of the remaining claims.

[23] Order accordingly.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 3, 2014