CITATION: Bonnick v. Bonnick, 2016 ONSC 1409

OSHAWA COURT FILE NO.: FC-15-1201

DATE: 20160226

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

TENA TAMARA BONNICK

Applicant

— and —

NEIL ANTHONY BONNICK

Respondent

COUNSEL:

Cheryl B. Mounsey for the Applicant

Wayne F. Leacock for the Respondent

HEARD: In Writing

Timms J.

COSTS ENDORSEMENT

[1] Further to my endorsement of January 26, 2016, both sides have now made complete submissions on costs. The applicant seeks her costs in the amount of $4,500.00, plus disbursements and HST, amounting to another $711.62. That claim rests in the main on her success on her motion for partition and sale. The amount for fees is based on eighteen hours at $250.00 per hour. This is said to be substantial indemnity. Counsel for the applicant attached what she categorized as a bill of costs and attached a transcription of her dockets thereto. The dockets showed a total of almost fifty hours, an obviously high amount for the applicant’s motion and response to the respondent’s motion.

[2] The respondent opposes any costs award to the applicant and seeks his own costs of $11,146.60, inclusive of HST. The respondent does not dispute that the applicant was successful on her motion for partition and sale. The opposition to the applicant being awarded any costs on her motion appears to be based on alleged unreasonable behaviour as per subrule 24(4) of the Family Law Rules.[^1] The argument in favour of a costs award on his own motion is founded on the alleged success thereof.

[3] When he filed his costs submissions, the respondent attached a net family property statement and a commitment letter from the Bank of Nova Scotia. Why he would do that is puzzling, since whatever might be contained therein has nothing to do with the costs of the motion. Unfortunately, the applicant’s reply submissions focus almost entirely on that material, as opposed to the merits of the respondent’s submissions on costs.

[4] I have considered the submissions set out by the respondent under the heading THE APPLICANT’S MOTION. It is my opinion that not one of them has any merit with respect whether the applicant deserves costs on her motion. Indeed, many of them amount to the respondent attributing unproven ulterior motives to the applicant. Beyond that, notwithstanding the heading, they relate to the respondent’s motion. There was simply no basis in fact or law for the court not to grant an order for partition and sale. Even if one were to indulge in speculation as to the parties’ ulterior motives, one could just as easily attribute such motives to the respondent. And, as I pointed out in paragraph [4] of my reasons, the respondent had not then, and still has not, filed any pleadings. That alone was fatal to any opposition to the applicant’s motion.

[5] Was the respondent successful on his motion? The answer to that question is “yes”, but only in part. In response to a question put by me to her at the beginning of her argument, counsel for the applicant admitted that the amount of $160,000.00 awarded to the applicant for future income loss would have to be taken into consideration on the issue of spousal support.

[6] Astonishingly, neither party made an offer with respect to the motions. In her factum filed on the motion, counsel for the applicant did not directly address the issue of whether the amount of $160,000.00 awarded to the applicant for future income loss would have to be taken into consideration on the issue of spousal support. The factum filed by counsel for the respondent did directly address that issue in a fulsome manner. Although counsel’s last minute admission to the court on this issue avoided any argument thereon, one can safely say that the respondent was successful on this issue.

[7] Likewise, the respondent was successful on the limited issue of whether the amount awarded to the applicant for loss of future income accruing prior to the separation should be deemed to be property. I found that it did.

[8] However, it is hard to credit the argument that the respondent was otherwise successful. I determined, and in my view it is very clear law, that amounts awarded for Family Law Act (FLA)[^2] claims pursuant to paragraph 61(2)(e) of the FLA are not property under section 4 of the FLA. And although counsel argues otherwise, I did not specifically find that amounts awarded to the applicant for future care and housekeeping were property under section 4 of the FLA.

[9] Overall therefore, success on the respondent’s motion was quite mixed.

[10] I have considered the applicant’s submissions regarding the importance of the issues at stake in her motion, the reasonableness of the parties with respect to that motion, and her lawyer’s rates. I agree that together they do not weigh against the applicant receiving costs on her motion. The amount of $4,500.00 for fees, plus $112.05 for disbursements and $599.57 for HST is not out of order in the circumstances.

[11] The respondent is likewise entitled to some costs on his motion, considering his success as determined by me above. Looking at the dockets submitted by counsel for the respondent, I find it impossible to determine how much time was spent on the issues on which he enjoyed success. Therefore, I am going to simply arbitrarily reduce the amount awarded to the applicant by the sum of $1,000.00.

[12] My costs order is that the applicant be awarded the amount of $3,500.00 for fees, $112.05, and $469.63 for HST. The total of $4,081.62 is payable forthwith.

The Honourable Mr. Justice Roger Timms

DATE RELEASED: February 26, 2016

[^1]: O. Reg. 114/99. [^2]: R.S.O. 1990, c. F.3.