ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-FP-255355FIS

DATE: 20151125

BETWEEN:

HELEN ANDERSON
Applicant

– and –

ROGER McWATT
Respondent

Patrick Schmidt, for the Applicant

Roger McWatt, self-represented

HEARD: In Writing

CHIAPPETTA J.

REASONS FOR COSTS

Overview

[1] 15 years following the commencement of the Application, the parties commenced the trial of their issues. After 16 days of trial, the Applicant was the successful party (Anderson v. McWatt, 2015 ONSC 3784). The Applicant submits that she incurred total costs in this proceeding in excess of $923,276.89. She seeks her costs of the action on a full indemnity basis from February 23, 2000 to and including trial in the amount of $777,229.19. In the alternative, the Applicant claims costs as against the Respondent from February 23, 2000 to January 27, 2010, the date when she submits the Applicant’s Offer to Settle dated January 27, 2010 was served on the Respondent, on a partial indemnity basis and from January 27, 2010 to August 18, 2015 on a full indemnity basis, in the amount of $745,895.09.

[2] The Respondent submits that the Applicant’s costs as claimed “cannot stand in light of her misplaced reliance on two of the three offers to settle, claiming costs for steps wherein costs were not reserved, providing a bill of costs without a breakdown of the time spent on each task, claiming costs for over-resourced work and duplication, [the Respondent’s] reasonable approach to litigation, [the Applicant’s] unduly laying blame for the length of litigation in this matter on [the Respondent], and [the Applicant’s] lack of complete success at trial”. The Respondent further submits that the principles of reasonableness, fairness and proportionality and his inability to pay mandate that the Applicant’s costs be substantially reduced. He asks the court to fix costs at $100,000.00 in favour of the Applicant.

[3] For reasons set out below, I have awarded the Applicant’s costs of the proceeding on a full indemnity basis from February 23, 2000 to and including trial fixed at $716,711.11. I have therefore not considered the Applicant’s alternative position.

[4] The Applicant retained counsel to represent her interests. She acted reasonably and in good faith throughout the 15 years of litigation and at trial. Throughout the litigation and at trial, the Respondent acted unreasonably and in bad faith. He was entirely unsuccessful at trial. The principle of proportionality must be assessed in this context. Considering the Respondent’s conduct, the Applicant should not have to self-fund a long and expensive pursuit of the truth only to receive what she was legally entitled to receive from the Respondent 15 years earlier. $716,711.11 is a large amount of money. In my view, however, awarding the Applicant costs in the amount of $716,711.11 on a full indemnity basis from February 23, 2000 represents a fair and reasonable exercise of my discretion considering all of the circumstances of this case and the principles as outlined in further detail below.

The Presumption in [Rule 24(1)](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html) of the Family Law Rules, O.Reg. 114/99

[5] The starting point for costs in a family law proceeding is the presumption in rule 24(1) that costs follow the event (C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.)). As noted above, the Applicant was the successful party at trial.

[6] Rule 24(4) provides that a successful party may not receive costs if his or her behaviour has been unreasonable. Rule 24(5) provides some examples of factors to be considered in assessing the reasonableness of behavior. The factors are the party’s behavior in relation to the issues from the time they arose, the reasonableness of any offer the party made and any offer the party withdrew or failed to accept.

[7] The Applicant has not engaged in unreasonable behavior. Rather, she made timely disclosure, reasonable efforts to obtain required disclosure and complied fully with the trial management Orders made by Justice Kiteley. The Applicant served 2 Offers to Settle independent of those included in a Settlement Conference Brief; an Offer to Settle dated June 11, 2012 and an Offer to Settle on May 1, 2015. Both Offers were not withdrawn prior to one minute after the commencement of trial and both Offers were more favourable to the Respondent than the results at trial. The Applicant presented relevant and organized documentary evidence throughout the trial and conducted efficient cross examinations on the issues for trial as agreed by the parties and ordered by Justice Kiteley on February 18, 2015.

Unprepared Party – Rule 24(7) of the Family Law Rules, O.Reg.114/99

[8] Rule 24(7) directs that the court shall award costs against a party who appears at a step in the case but is not properly prepared to deal with the issues at that step unless the court orders otherwise in the interests of justice.

[9] The Respondent was unprepared to give evidence in chief on the issues as agreed prior to trial by the parties. He was unprepared to guide the court through the 12 volumes of document briefs he served and filed with court as his documents for trial. He was unprepared in terms of what witnesses he wished to call at trial. He asked the court to adjourn early on one occasion to allow him more time to prepare his case. The court gave him this time but he returned no better prepared than prior to the adjournment.

[10] The Respondent was self-represented at trial. Given the extensive amount of judicial resources devoted to prepare this case for trial, this is little excuse however for him not being prepared. Justice Kiteley took the time with parties prior to trial in a demonstrated effort to ensure the efficiency of the trial process (Anderson v. McWatt, 2015 ONSC 1340; 2015 ONSC 1085; 2015 ONSC 254). She conducted 6 separate trial management conferences. Her respective endorsements reflect that therein she explained the procedures at trial, reviewed the witnesses proposed by each party and narrowed the issues to be determined. During the trial I attempted to guide the Respondent procedurally, repeatedly asking him to prepare and provide evidence on the agreed issues otherwise I would be left with only one side of the story. The Respondent nonetheless continued to attend unprepared for trial.

Bad Faith Conduct and Full Recovery – Rule 24(8) of the Family Law Rules, O.Reg.114/99

[11] Rule 24 (8) directs that the court shall decide costs on a full recovery basis if the party has acted in bad faith. The legal test for bad faith in the family law context, as set out in S. (C.) v. S. (M.) (2007), 2007 20279 (ON SC), 38 R.F.L. (6th) 315 (S.C.J.), at para. 17, aff’d 2010 ONCA 196, 2 O.A.C. 225, is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive (C.S. v. M.S., 2010 ONCA 196; Scalia v. Scalia, 2015 ONCA 492 at para. 68).

[12] In my view, the Respondent engaged in bad faith conduct over the 15 years of litigation, including during the trial such that costs on a full recovery basis is appropriate. His conduct was intentionally designed to delay, frustrate and deceive the court’s efforts to determine his true income for support purposes, the ownership of 28 Atlantic and the equalization of the parties’ net family property. The consequences of his conduct were not only a prolonged and more expensive course of litigation but increased emotional and financial damage to the Applicant. I make this conclusion for the following reasons taken together:

1. Ownership of 28 Atlantic was a critical issue between the parties. The Respondent lied about the ownership of it and 3 residential properties in affidavits, on questioning and in his sworn financial statements. In his affidavit sworn August 16, 2000 the Respondent deposed that he purchased 28 Atlantic through Stratus Development Corporation (“Stratus”) and he transferred his interest to Stratus before he married the Applicant. 14 years later, on June 2, 2014, he deposed that although he swore financial statements showing Stratus as the owner of 28 Atlantic, he never transferred title of 28 Atlantic from himself to Stratus. The Respondent told the truth in 2012 as he was advised by his then counsel that it suited his needs in the proceeding (paragraph 43a, paragraph 65, 66, 67 of my reasons for judgment released June 24, 2015).

2. The Respondent continually failed to comply with his child and spousal support obligations made by court order. He was eventually sent to jail for his failure to pay his arrears. 6 years later, still in arrears, his pleadings were struck. While they were eventually reinstated, it cannot be denied that he was regularly in arrears of court ordered spousal support and child support for a period of 11 years (paragraph 6a-i of my reasons for judgment released June 24, 2015).

3. For 15 years, including the years he was regularly in arrears for support, the Respondent artificially suppressed his true available income for support purposes by diverting rents from 28 Atlantic to Stratus and claiming personal expenses as business expenses (paragraphs 127, 128, 129, 132, 136, 193 of my reasons for judgment released June 24, 2015). He continued to perpetuate this fiction at trial by proffering misleading financial statements of Stratus and calling his accountant to give misleading evidence in chief.

4. The Applicant avoided suffering undue economic hardship from the marriage breakdown only by drawing from her RRSP investments and securing debt against the matrimonial home to provide for her needs and those of their children (paragraph 155 of my reasons for judgment released June 24, 2015).

5. I made an adverse finding of credibility against the Respondent at trial and set out 25 examples supporting this finding, including examples of the Respondent misleading the court in his sworn affidavits, sworn financial statements, during questioning and testimony at trial (paragraph 43 a-y of my reasons for judgment released June 24, 2015).

Costs to be Decided at Each Step – Rule 24(10) of the Family Law Rules, O. Reg. 114/99

[13] Prior to the Family Law Rules coming into effect in 2004, there was no requirement that costs of an event in the case be reserved in order for a party to be able to claim costs for that event. Therefore, the Applicant claims costs for all events prior to 2004 where costs were not dealt with and not reserved. I see no reason to deny the Applicant entitlement to costs claimed for all events prior to 2004 where costs were not dealt with and not reserved.

[14] Rule 24(10) of the Family Law Rules directs that promptly after each step in the case the judge or other person who dealt with that step shall decide who if anyone is entitled to costs and set the amount of costs. On February 27, 2015, Justice Kiteley ordered “costs of all trial management conferences are reserved to the trial judge” (“the Kiteley Order”). The Kiteley Order was not limited to the February 27, 2015 but rather references “all trial management conferences.” In my view, the Kiteley Order is meant to include therefore all appearances dealing with the scheduling or management of the trial, unless otherwise stated by the presiding judge, including those that took place prior to or following the Kiteley Order. For example, on July 29, 2011, Justice Goodman conducted a trial management conference and the Kiteley Order properly applies to reserve costs of that attendance to the trial judge. Similarly, Justice Goodman conducted a trial management conference on November 2, 2011 and the Kiteley Order properly applies to reserve costs of that attendance to the trial judge.

[15] The Kiteley Order applies only to appearances dealing with the scheduling of the trial or any other matter relating to the management of the trial. I agree with the Respondent that it does not apply to the case conference returnable April 25, 2008 ($10,503.15), the settlement conference returnable June 19, 2009 ($7,145.35; despite costs reserved to a further conference that did not proceed), the settlement conferences returnable July 10, 2012 and July 18, 2012 ($8,901.58) and the settlement conference returnable May 13, 2013 ($8,526.98 despite costs reserved to a further conference that did not proceed).

Factors to Consider in Apportioning Costs – Rule 24 (11) of the Family Law Rules, O. Reg. 114/99

[16] Rule 24(11) sets out factors that are to be considered by the court in setting the appropriate quantum of costs.

(a) the importance, complexity or difficulty of the issues

[17] There was nothing particularly unique about the issues for trial (paragraph 45a-k of my reasons for judgment released June 24, 2015). Resolving the issues however was rendered complex by the Respondent’s conduct in concealing both the true ownership of 28 Atlantic and his true income for support purposes. Until February 8, 2012/May 11, 2012, the Respondent’s sworn evidence was that Stratus owned 28 Atlantic. After May 11, 2012, his sworn evidence was that he owned 28 Atlantic, although the financial statements of Stratus continued to reflect its ownership of 28 Atlantic through to fiscal 2014 (paragraphs 65 and 66 of my reasons for judgment). The evidence at trial demonstrated that the financial statements of Stratus were used by the Respondent to suppress his true available income for support purposes, his accountant’s evidence was self-serving and his income tax returns were not accurate (paragraphs 127, 128, 129). The complexity of the issues between the parties lay in their resolution therefore, as a direct result of the Respondent’s effort to conceal the truth and the corresponding effort required to dissect the truth from the web of deceit he proffered.

(b) the reasonableness or unreasonableness of each party’s behaviour in the case

[18] As noted above, I have found the Applicant’s behaviour in this case to be reasonable.

[19] The Respondent served an Offer to Settle dated May 1, 2015, the terms of which were less favourable for the Applicant than the results at trial. In total, however, his behaviour in the case is properly described as unreasonable. I make this conclusion for the following reasons taken together:

1. The Respondent filed 12 document briefs at trial containing 2,432 pages. Few of these pages were ultimately marked as exhibits. Many of the pages were not listed in his several affidavits of documents, were unsigned or marked as draft.

2. Despite preparing 12 document briefs, the Respondent failed to provide the court with his income tax returns. The Applicant prepared and filed a brief of the Respondent’s income tax returns with the court.

3. The Respondent filed an additional 5 briefs purportedly to establish his claimed section 7 expenses, containing 1,481 pages. The pages were largely illegible and mostly referred to items outside of permissible section 7 expenses (paragraph 178 of my reasons for judgment dated June 25, 2015).

4. On the 5th day of trial, after the Applicant completed her case, the Respondent requested to file with the court two large legal size books with hundreds of pages of handwritten notes therein. He advised the court that the two books were the ledger books for McWatt Anderson and that he could have them copied at a cost of $9,000. I refused the Respondent’s request. Included in my reasons was the fact that prior to trial Justice Kiteley had 6 lengthy trial management conferences with the parties from October 22, 2014 to May 6, 2015. The issues for trial were agreed to therein. Justice Kiteley made specific orders in terms of production of documents including that both parties shall serve their document briefs by a certain day (paragraph 128m of my reasons for judgment dated June 25, 2015).

5. The Respondent listed non-existent documents in his Affidavits of Documents. For example, in his affidavit of documents sworn April 20, 2011 and January 15, 2015, the Respondent listed a document entitled “loan from McWatt Anderson to Rodger to purchase 28 Atlantic.” During cross-examination at trial the Respondent agreed that there is no such document (paragraph 43f of my reasons for judgment released June 24, 2015).

6. Despite being repeatedly counseled by the court, a significant portion of the Respondent’s evidence at trial failed to address the issues as agreed between the parties and stipulated in the consent Order of Justice Kiteley dated February 18, 2015.

7. I found the Respondent to be argumentative and non-responsive during his cross-examination. He did not answer questions directly. Rather, he attempted to answer perceived inferences, despite repeated direction from the court to listen and respond to the question asked (paragraph 43of my reasons for judgment dated June 25, 2015).

8. The Respondent called 4 witnesses at trial. It was readily evident to me that despite an order excluding witnesses, the Respondent’s brother Paul McWatt was coached by the Respondent to answer questions in examination in chief consistent with a well- rehearsed script of dialogue (paragraph 44 of my reasons for judgment dated June 25, 2015). The evidence of the other 3 witnesses primarily supported the theory of the Applicant’s case.

(c) the lawyer’s rates

[20] The Applicant provided the court with a bill of costs dated August 18, 2015 (“the Applicant’s bill of costs”). The first entry on the Applicant’s bill of costs is December 16, 1999. The last entry is August 18, 2015. 7 lawyers worked on the file. Their hourly rates necessarily changed throughout their retainer. I find that the rates were at all times reasonable and consistent with the rates of downtown law firms in Toronto:

1. Patrick D. Schmidt was called to the Bar in Ontario in 1979. He has been certified as a specialist in family law from October 1992. His hourly rates range from $350.00 an hour effective January 1999 to $750.00 effective January 1, 2014.

2. George Karahotzitis was called to the Bar in Ontario in 2002. His hourly rates range from $165.00 effective March 1, 2003 to $525.00 effective January 1, 2014.

3. Joanna Harris was called to the Bar in Ontario in 2006. Her hourly rates range from $250.00 effective June 25, 2007 to $275.000 effective January 1, 2010.

4. Elliot Goodman was called to the Bar in Ontario in 2009. His hourly rates range from $275.00 effective July 5, 2010 to $325.00 effective January 1, 2012.

5. Adam C. Delva was called to the Bar in Ontario in 2010. His hourly rates range from $275.00 effective July 9, 2012 to $300.00 effective January 1, 2014.

6. Melanie A. Larock was called to the Bar in Ontario in 2011. Her hourly rates range from $275.00 effective February 13, 2012 to $350 effective January 1, 2014.

7. Jessica M. Luscombe was called to the Bar in Ontario in 2014. Her hourly rate is $275.00 effective September 2, 2014.

[21] Given the amount of documents involved and the complexity required to resolve the issues as set out above, it is not surprising that 5 law clerks also billed time on this file, on behalf of the Applicant. Their respective hourly rates are also reasonable in my view (between $100.00 effective December 1999 and $225.00 effective January 1, 2014).

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order

[22] The Applicant’s bill of costs reflects that she incurred total costs in this proceeding in excess of $923,276.89. The Applicant claims total costs of $777, 229.19 broken down as follows:

1. Full indemnity 85% of $893,052.21 (total fees and disbursements of $923,276.89 minus

$28,953.43 on account of fees relating to the motion returnable September 9, 2014, pursuant to the Order of Justice Kiteley dated October 14, 2014 and March 9, 2015, minus $1,271.25 on account of fees relating to the Settlement Conference held April 22, 2015, pursuant to the Order of Justice Kiteley dated April 23, 2015 = $759,094.38).

2. Costs of $17,372.06 (partial indemnity 60% of $28,953.43 on account of fees relating to the motion returnable September 9, 2014, pursuant to the Orders of Justice Kiteley dated October 14, 2014 and March 9, 2015).

3. Costs of $762.75 (partial indemnity 60% of $1,271.25 on account of fees relating to the Settlement Conference held on April 22, 2015, pursuant to the Order of Justice Kiteley dated April 23, 2015).

[23] The Applicant submits that the costs claimed by her are an accurate reflection of the work done to conduct this action given the Respondent’s conduct and to prepare and conduct the trial of this action in spite of what she describes as the Respondent’s counterproductive behaviour from September 2014 up to trial.

[24] The Respondent submits that the Applicant’s bill of costs as presented provides insufficient detail as to how many hours were spent with respect to the work that was completed. He relies on Blank v. Micallef, 2009 CarswellOnt 697 (S.C.J.). I agree with the Applicant that this case is distinguishable from Blank wherein a breakdown of the time spent on specific matters could be reasonably expected when determining the costs of a single motion.

[25] The Applicant has submitted a bill of costs for work completed over a period of 15 years. The Applicant caused this proceeding to be commenced by way of Petition for Divorce in 2000. The motion activity commenced soon thereafter. The procedural history is chronicled at paragraph 6a-q of my reasons for judgment released on June 24, 2015. The court orders reflect the details of the appearances prior to 2004 and those wherein costs were reserved to the trial judge. Having presided over the trial, I am well versed in the preparation required given the issues, documents and evidence presented therein. It is neither practicable nor desirable from a further cost perspective to ask counsel to provide a breakdown of the hourly activities done at each stage of this proceeding. Rather, having regard to the procedural history as documented and my knowledge of the issues and the evidence at trial, and subject to my findings on entitlement, I am satisfied that the services devoted to each stage of the proceeding as set out in the Applicant’s bill of costs as submitted is reasonable.

[26] The Respondent further submits that there was duplication in the Applicant’s work undertaken and “due to the block paragraphs provided she cannot rebut this submission.” The Respondent’s assertion does not in itself create a presumption that the Applicant would be required to rebut. Further, having reviewed the Applicant’s bill of costs in detail I find no evidence of duplication or that she over resourced her case. In many examples throughout the 12 years, the Applicant’s lawyer did not charge for the work of a clerk or junior lawyer. As noted above, the Respondent served and filed almost 4000 pages of documents he represented that he intended to rely upon at trial. A team approach to such conduct is reasonable, as it could not have been anticipated that the Respondent would not rely on the majority of pages served or that a significant amount were inadmissible for reasons noted above. Moreover, the proceeding was document driven requiring the Applicant to prepare her own voluminous briefs and specific tables and calculations of her position on the amounts of support and interest owing. At trial, it was the Applicant’s counsel and his team who supported the Respondent by filing the Respondent’s income tax returns and directing and guiding the location of all relevant documents including those in the Respondent’s own briefs, of which he appeared unfamiliar. Further, it was the Applicant’s counsel and his team who assisted the court with efforts not required when both parties are represented by counsel; including those with oral evidence, documentary evidence and case law.

[27] Given the complexity involved in resolving the issues between the parties, as referenced above, in my view, a team approach for the conduct of this litigation was reasonable (Bales Beall LLP v. Fingrut, 2913 ONCA 266, 2013 CarswellOnt 5025 at paras. 12-14). The team was required to pour through voluminous documents and contrary sworn evidence of the Respondent to decipher the true ownership of 28 Atlantic, the flow of rents to Stratus, the veracity of business expenses claimed by Stratus in relation to 28 Atlantic, the multiple borrowings of the Respondent to fund his debt and his personal expenses and ultimately determine the Respondent’s true income for support purposes. As noted at paragraphs 127, 128 and 129 of my reasons for judgment dated June 24, 2015, this was no easy feat.

[28] In terms of specific entries, other than those previously referenced above, the Respondent submits that the Applicant’s claimed costs of $26,995.55 on a full indemnity basis for a motion before Justice Mesbur on June 5, 2014 is excessive. I disagree. This was a long motion seeking leave to amend the Applicant’s pleading in response to the Respondent changing his sworn evidence as to the ownership of 28 Atlantic. I accept the Applicant’s submission that it required extensive preparation of facta for the court.

[29] The Respondent further submits that the Applicant’s claimed costs on a full indemnity basis for a conference before Justice Goodman on May 23, 2012 and a 2 day settlement conference on June 18, 2012 in the amount of $38,162.00 is not appropriate as the trial date was vacated “due to holding a settlement conference” and “it is not possible to determine how much time was spent on the conference.” The trial scheduled for June 11, 2012 was vacated due to the admissions made by the Respondent’s then counsel resulting in the need to conduct further questioning of the Respondent and the Applicant’s need to amend her pleadings (paragraph 6h-j of my reasons for judgment released June 24, 2015). In any event, at paragraph 4 of her endorsement of May 23, 2012, Justice Goodman, clearly reserved costs of the day to the trial judge. The Applicant is entitled to costs for that appearance. The Applicant’s costs of the conference of May 23, 2012, however, are included with the description of her costs of the 2-day settlement conference. It is therefore difficult to determine how much time was spent only on the conference as opposed to the settlement conference. The Applicant is not entitled to her costs from the 2-day settlement conference as the costs of the day were not reserved to the trial judge and the costs are not captured by the Kiteley Order. Given that the Applicant’s bill of costs combined the costs of the 3 days, in my view it is reasonable to divide the total costs by 3. It is admittedly not precise but such a calculation fairly represents an attempt to balance the Applicant’s entitlement with the Respondent’s obligation. The costs for the conference before Justice Goodman on May 23, 2012 are fixed therefore at $12,720.98.

[30] Finally, the Respondent submits that the Applicant “appears to provide for double counting with respect to a settlement conference and series of motions.” I have reviewed the Applicant’s bill of costs in detail. I find no evidence of “double counting”, as alleged by the Respondent.

(e) expenses properly paid or payable

[31] The Respondent has taken no issue with the Applicant’s disbursements as set out in her bill of costs ($61,486.19 inclusive). I find the disbursements reasonable in the circumstances.

(f) any other relevant matter

[32] Under rule 24(11)(f), judges are to consider “any other relevant matter,” the most common of which is a party’s ability to pay a costs award.

[33] In C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), the Court of Appeal held at para. 42 that the financial positions of the parties are relevant considerations in making an award for costs. However, it has also been held that a party’s limited financial circumstances will not be used as a shield against any liability for costs if that party has behaved unreasonably or in bad faith (Ellis v. Ellis, 2004 33293 at para. 7 (Ont. S.C.)).

[34] The Respondent asserts that he does not have the ability to pay the costs claimed by the Applicant. He has provided no evidence to demonstrate this assertion. His interests in 28 Atlantic and the matrimonial home are being held as security for the amounts owed to the Applicant (paragraphs 8c and 11c of my reasons for judgment dated June 24, 2015). The Respondent’s own evidence of the value of these properties is inconsistent with his assertion on his ability to pay. I therefore do not accept his assertion.

[35] I have considered as a relevant matter the principle of proportionality. The Respondent submits that “it is not proportionate to spend $923,276.89 with respect to the issues at stake.” As submitted by the Applicant, however, the Respondent states that his own legal fees incurred during those periods in the proceeding when he was represented by counsel amounted to $395,525.26. Over the 15 years of litigation, the Respondent was not represented for a total of 4.5 years, including February 6, 2013 to June 4, 2015 during which time the parties had 12 appearances to move the case to trial. The Applicant further submits that during the period when the Respondent was not represented by counsel, the Applicant incurred legal fees of $569,603.66, $252,936.38 of which were incurred by the attendance at the trial. Assuming that the same amount of fees would have been incurred by the Respondent during that period, the total legal fees which the Respondent would have incurred, it is submitted, would have totaled approximately $965,128.92. While the Applicant’s submission is speculative, it is nonetheless reflective of the reality of the costs of 15 years of high conflict litigation.

[36] In my view, proportionality must also be assessed within the context of the Respondent’s conduct as set out above. The legal costs for the Applicant were significantly increased directly as a result of the Respondent’s choice not to disclose the true ownership of 28 Atlantic until 2012 and his efforts to conceal his true income for support purposes through to trial. The costs to the Applicant further increased by the Respondent’s choice to serve over 4000 pages of documents he represented he would be relying upon at trial but later chose not to. It is therefore disingenuous for the Respondent to suggest that the Applicant’s costs are not proportional to the issues when his intentional conduct caused the Applicant’s counsel to bill her for legal work that would not otherwise have been required to represent the best interests of the Applicant.

[37] For these reasons, in my view, the Applicant’s claimed costs do not offend the principle of proportionality.

[38] I have also considered as a relevant matter that the Respondent was self-represented at trial and throughout periods of the litigation. Balanced against this consideration, however, is the Respondent’s bad faith and unreasonable conduct as described above, the long and expensive litigation endured by the Applicant, the extensive trial management efforts of Justice Kiteley and the Respondent’s complete lack of success at trial. While access to justice ought to properly be promoted in our courts, it cannot and should not be used as a shield from the consequences of the Respondent’s intentional efforts to mislead this court and deny his family law obligations.

Summary

[39] The Applicant seeks her costs of this proceeding on a full indemnity basis from February 23, 2000 to and including trial in the amount of $777,229.19. For reasons set out above, I have awarded her costs on a full indemnity basis but reduced the amount of costs by $60,518.08 (see paras. 15 and 29 above). I have awarded the Applicant costs of this proceeding therefore fixed at $716,711.11.

Order to go:

1. The costs of this proceeding are fixed at $ 716,711.11 in favour of the Applicant.

2. The Respondent shall be credited with the amount of $3,500 owed by the Applicant to the Respondent pursuant to the Order of Justice Aston dated June 16, 2011.

3. Within 45 days, therefore, the Respondent shall pay the Applicant $ 713,211.11.

Chiappetta J.

Date: November 25, 2015

COURT FILE NO.: 00-FP-255355FIS

DATE: 20151125

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HELEN ANDERSON
Applicant

– and –

ROGER McWATT
Respondent

REASONS FOR COSTS

Chiappetta J.

Released: November 25, 2015