COURT FILE AND PARTIES

COURT FILE NO.: FS-15-401630

DATE: 20151019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rheba Gillespie, Applicant

AND:

Michael Jones, Respondent

BEFORE: Kiteley J.

COUNSEL: R. Adam J. Pyne-Hilton, for the Applicant

Michael Zalev, for the Respondent

HEARD: in writing

ENDORSEMENT AS TO COSTS

[1] I released an endorsement dated August 24, 2015 [2015 ONSC 5265] in which I directed counsel to make written submissions as to costs. The submissions on behalf of the Respondent were dated September 11, 2015 followed by submissions on behalf of the Applicant dated September 24, 2015.

[2] I then received from counsel for the Respondent a form 14B motion dated September 30, 2015 in which counsel asked for leave to file a single page of submissions in reply. On October 6, 2015, I received reply submissions to that 14B motion.

Positions of the Parties

[3] The Respondent asks for costs on a full recovery basis payable forthwith in the amount of $20,800.

[4] The Applicant acknowledges that the Respondent was successful on the motion but takes the position that there should be no costs; alternatively, that costs should be left to the trial judge; and in the further alternative, if costs are awarded they ought not to exceed $7500 inclusive of HST and disbursements and should be set-off against an ultimate award the Applicant might receive at trial.

Motion by Respondent for leave to file reply submissions

[5] In his 14B motion, Mr. Zalev asks that his client be permitted to reply to the Applicant’s “version of various events that occurred” after the release of the endorsement; to her allegations that the Respondent had been “dishonest” and that he “deliberately misled the Court during the motion” and that he provided “misleading information” to the court; to her claim that the amount sought is “excessive” while he pointed out that she had not included her own bill of costs in order to compare; to her claim that she lacks the ability to pay costs while he pointed out that the Applicant has still not provided the disclosure that the Respondent had requested prior to the motion in August; to her claim that any costs ordered should be deferred because she “will likely be entitled to a large equalization payment from Michael” while he observed that part 1 of the Family Law Act does not apply to them and therefore there is no equalization payment.

[6] In the 14B motion, counsel acknowledged that counsel for the Applicant was critical of the inclusion of paragraph 8(d) that referred to a proposal that “was made at the end of the mediation that took place immediately before the motion was argued.” In that respect, counsel for the Respondent wrote that “to avoid a debate about whether or not paragraph 8(d) ought to have been included in Mr. Jones’ submissions, Mr. Jones respectfully proposes that the Court simply disregard this paragraph.”

[7] In his written submission in reply, counsel for the Applicant opposed the 14B motion and, amongst other things, he pointed out that counsel for the Respondent had in effect made his reply submissions in the 14B motion.

[8] I dismiss the motion for leave to file reply submissions for these reasons. First, in the timetable that I established at paragraph 72 of the earlier endorsement, I did not provide a right of reply. I do not generally allow reply submissions on the subject of costs because that has the effect of extending the conflict when the issue of costs ought to be decided without a prolonged process, such as occurred here, which required additional time to read and consider the 14B motion and delay the release of what should be a short endorsement as to costs.

[9] Second, I agree that counsel for the Applicant inappropriately incorporated events that took place after the endorsement was released, namely the outcome of a hearing in British Columbia and the possible implication on costs of this motion. But I do not need further reply submissions to disregard that submission.

[10] Third, the allegations made by the Applicant about the Respondent’s honesty reflect her conclusions only. No such findings have been made and the allegations will be disregarded without a further reply.

[11] Fourth, it is helpful if a party provides his or her own costs outline in making a submission that the request for costs is excessive. But it is not mandatory. Without further submissions, I am in a position to judge whether the request is excessive and to note the absence of a comparator.

[12] Fifth, based on the view I take, ability to pay is not the determinative factor. At any rate, I do recall the evidence by both parties on financial issues that was contained in the motion record before me. I do not need further submissions on the point.

[13] Sixth, the discussions with the mediator in this case are protected by settlement privilege. On the morning of the hearing of the motion, the parties did meet with a mediator at the Family Law Information Centre. Rule 24(5)(c) does not provide a basis for any discussion in mediation to have been included in the submissions as to costs. In this particular case, my recall is that I encouraged the parties to meet with the mediator while I dealt with another matter. It would be contrary to public policy if parties who acquiesce in last minute court encouraged mediation should run the risk of having the discussion open for any reason including costs.

[14] While counsel for the Respondent sought to reply on the issue of privileged discussions during the mediation, it was in fact the Respondent who opened that door. It was understandable that counsel for the Applicant would refer to it in his submissions but both were inappropriate.

[15] Finally, I agree that it was inappropriate for counsel for the Respondent to have included in the 14B motion the substance of what he would have incorporated into his reply submissions before I granted leave for such submissions.

Analysis

[16] The Respondent was successful. He is presumed to be entitled to costs of the motions.

[17] In my earlier endorsement, I reached various conclusions about the behavior of the Applicant, namely:

Paragraph 55: the Applicant waited until the timing suited her on July 20 to disclose that she would seek a divorce. The Applicant surreptitiously took steps to begin proceedings and then failed to disclose them for 4 months. The Applicant surreptitiously removed belongings in June when he was in England.

Paragraph 56: I inferred that the timing of the announcement of the separation was directly related to when she had all of her “ducks in a row” and could chose the forum in which she wanted to launch the proceeding.

Paragraph 57: that sort of surreptitious attempt to gain forum advantage ought to be discouraged.

[18] Based on those conclusions, I find that the Applicant behaved unreasonably and for that reason I will order payment of costs above partial indemnity. I am not persuaded that such behavior constituted bad faith as defined in Scalia v. Scalia [2015 ONCA 492 at para 68].

[19] In setting the amount of costs, the court must consider the factors listed in rule 24(11). The issues in the motion were important to both parties and to the court. The legal issues were somewhat complicated. It was essential that the motion be brought on behalf of the Respondent as soon as possible and hence diligent and expert advice and services were required. The time spent on the preparation and attendance at the motion (which, including mediation in the morning and submissions from about 2:00 to about 4:40 p.m. took the entire day) were reasonable and reasonably allocated between senior and junior counsel.

[20] I come to the “reasonable expectations of the parties”. I do not agree that an award of $20,800 is consistent with the reasonable expectations of the parties for a half-day hearing. Even accepting the reasonableness of the bill of costs and the other factors mentioned above, I conclude that an order for costs in the amount of $10,000 is proportionate to the issues and the work involved and consistent with the reasonable expectations of the parties.

[21] As for the terms of payment, I am cognizant of the view that a litigant should “pay as she goes” which usually warrants a term requiring payment within a specific period of time. However, notwithstanding the conclusion I reached about the unreasonable behavior of the Applicant which attracted costs, that does not necessarily mean I should order that costs be paid forthwith. The issues involved are largely parenting. It would not be in the best interests of the child if the court made an order requiring early payment which was then used to attempt to curtail the Applicant’s involvement in the case or indeed attempt to strike her pleadings for non payment. For that reason I do not specify an immediate payment date.

ORDER TO GO AS FOLLOWS:

[22] The Applicant shall pay to the Respondent costs of the motions before me fixed in the amount of $10,000 (including HST and disbursements) to be paid as follows:

(a) set off against any amounts found owing, or

(b) if none found owing, on final judgment or settlement.

Kiteley J.

Date: October 19, 2015