SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS2100-08
DATE: 2014/09/16
RE: Deborah L. Gennoe v. Blake Gennoe
BEFORE: Ellies J., in chambers
COUNSEL:
Hugh C. McLachlan, for the Applicant
Shawn Hamilton, for the Respondent
ENDORSEMENT
[1] On July 4, 2014, on consent, I ordered that the parties were at liberty to file written submissions regarding costs, if they were unable to agree on that issue. The parties were unable to agree and Ms. Gennoe (now Ms. Laframboise) filed written submissions on July 23, 2014. The time for reply submissions from Mr. Gennoe has passed without any submissions being filed. Ms. Laframboise has requested that I provide my decision, which is as follows.
[2] Ms. Laframboise requests costs on a full recovery basis in the amount of $11,523.18 including HST. She argues that Mr. Gennoe failed to provide proper disclosure of relevant documents even after Nadeau J.’s order of March 28, 2013 which required production of certain documents in particular. She contends that she was only able to obtain proper documentary disclosure after Mr. Gennoe provided a release in her favour to obtain documents directly from Mr. Gennoe’s former employer in January, 2014. She submits that Mr. Gennoe acted in bad faith in failing to make proper and timely documentary disclosure. She argues that she incurred additional costs associated with attending a number of case conferences that would not have been necessary had Mr. Gennoe complied with his obligations under the Family Law Rules, O. Reg. 114/99 and Nadeau J.’s March 28 order.
[3] It is true that Ms. Laframboise was required to attend a number of case conferences in this matter. In particular, case conferences were held as follows:
March 13, 2013
Case Conference before Valin J.
April 19, 2013
Case Conference before Nadeau J.
Rivard J.’s order temporarily varied on consent from $3,000 per month to $1,500 per month, commencing March 1, 2013 and ending August 1, 2013.
August 8, 2013
Case Conference continued before Nadeau J.
August 22, 2013
Case Conference continued before Nadeau J.
On consent, temporary order reducing support continued until December 1, 2013
December 13, 2013
Case Conference/Settlement Conference held before Nadeau J.
December 30, 2013
Case Conference concluded before Nadeau J.
Mr. Gennoe ordered to provide release directed to former employer to produce documents to Ms. Laframboise
[4] In total, therefore, Ms. Laframboise was required to attend or participate in six case or settlement conferences. However, there were no costs orders made with respect to any of them.
[5] Rule 24(10) of the Family Law Rules provides that costs should be decided in a summary matter “promptly after each step in the case”. In Islam v. Rahman, 2007 ONCA 622, the Court of Appeal held that Rule 24(10) precludes a trial judge from ordering costs with respect to earlier steps in a case where no order was made as to costs at the time, or where there was silence as to the issue. This has been interpreted to relate only to costs incurred in a step involving a judge and not to steps which do not require of any form of judicial intervention, such as the preparation of pleadings, financial statements, etc.: Houston v. Houston, 2012 ONSC 233, at para. 16.
[6] Some courts have deviated from the ruling in Islam: see, for example, Gogas v. Gogas, 2011 ONSC 5368. However, I agree with my colleague, Olah J., who held recently that Islam precludes a judge who hears a case from awarding the costs of earlier procedural steps regarding which no costs orders were made: Green v. Green, 2014 ONSC 5000, at para. 26.
[7] Even if Islam was not the law, I would be reluctant to award costs in connection with the attendance of the parties at the case conferences referred to above, all but one of which were held before Nadeau J. Nadeau J. also heard the March 28 motion for production and reserved the costs of that motion until he was able to view the documents he had ordered Mr. Gennoe to produce, at the case conference to be held on April 19. Nadeau J. was in a far better position to assess the costs of attending the case conferences in light of the behaviour in which Ms. Laframboise alleges Ms. Gennoe engaged, including the allegation of bad faith.
[8] Therefore, I have removed the amounts sought for costs associated with attending the case conferences. I note that not all of those attendances were reflected in the account rendered by Mr. McLachlan. In particular, no charges appear in connection with the December 13 and December 30 conferences. Removing these amounts, including HST, reduces the total sought on a full indemnity basis by $2,839.13.
[9] In addition, Mr. McLachlan’s account to Ms. Laframboise includes fee charges of $455 and $350 in connection with the motion at Tab 16 of the continuing record. This motion was brought because of an error in my decision of May 13, 2014 relating to the arrears of support. I dealt with that motion on July 4, 2014 and ordered that no costs should be paid in connection with it. Removing these charges, plus HST, reduces the full indemnity costs sought by the further sum of $909.65, leaving total full indemnity costs in the amount of $7,774.40.
[10] Having eliminated the costs associated with attending the case conferences, I can see no reason to award costs to Ms. Laframboise on a full indemnity basis. While Mr. Gennoe was not successful in his motion to change, it cannot be said that the motion was entirely devoid of any merit, for example.
[11] Therefore, I award costs on a partial indemnity basis of two-thirds of the full indemnity amount set out above (i.e. $7,774.40) rounded up to the nearest multiple of $100, for total costs payable by Mr. Gennoe to Ms. Laframboise in the amount of $5,200.
Ellies J.
Date: September 16, 2014