Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Prudence Gonsalves, Applicant
AND:
Steven Scrymgeour, Respondent
BEFORE: Justice Harvison Young
COUNSEL: Elliot Birnboim, for the Applicant
Avra Rosen, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1]
Background
On January 11, 2016 I heard a motion brought by the Applicant Wife to strike the Respondent Husband’s pleadings on the basis of the husband’s failure to make disclosure. I dismissed the motion by handwritten endorsement issued on the same day on the basis that by the time the motion was heard, the disclosure orders had been largely fulfilled. I invited costs submissions in writing in the event that the parties were unable to agree as to costs.
[2]
Positions of the Parties
Both parties seek costs of the motion. On behalf of the Applicant Wife, Mr. Birnboim submits that there has been a long battle in this case over disclosure. He argues that the Respondent Husband has been less than forthcoming over the course of this application which was commenced in 2012. But for this motion, which should have been unnecessary, Mr. Birnboim submits, the disclosure provided in December, 2015 would not have been made. The Applicant Wife seeks costs on a full indemnity basis in the amount of $19,834.33 despite the fact that her motion to strike was dismissed. She also claims that many of the answers to undertakings provided by the Respondent Husband are inadequate.
3Ms. Rosen, on behalf of the Respondent Husband, seeks costs of the motion on the basis that he was successful on the motion and submits that the Applicant Wife has proceeded in a manner that is not consistent with the order made by Horkins J. on May 20, 2015 and October 2, 2015. She seeks full recovery costs in the amount of $15,799.32.
[4]
Analysis
Having considered the parties’ submissions, I conclude that this is one of those cases in which it is appropriate to order that the question of the costs of the motion be reserved to the trial judge.
5I recognize that, as Ms. Rosen notes in her submissions, costs are normally to be determined at each step (Rule 24(10).
6However, the heart of the Applicant Wife’s costs submissions is that the husband has repeatedly made inadequate disclosure, running up the wife’s costs, and that the disclosure has continued to be inadequate. To the extent that Mr. Birnboim’s submissions on behalf of the Applicant Wife effectively go beyond the motion actually before me, it is not appropriate to make a costs order in his favour at this stage. But it would be unfair to require the wife to expend further funds which could affect her ability to proceed to the trial if it turns out that her position is vindicated at trial, particularly with respect to a pattern of non-disclosure throughout these proceedings.
7As I noted in my endorsement, my findings that the disclosure order had been satisfied are without prejudice to any adverse findings that the trial judge might make on the basis of lack of or inadequate disclosure at trial. Given the lengthy history of this case and the complexity of the factual allegations concerning compliance and non-compliance with various previous orders, it was simply not possible (or appropriate) to resolve all the issues relating to the patterns on a motion. As I noted in my endorsement, they are triable issues that will have to be determined by the trial judge. For example, the Applicant Wife submitted that the documents submitted as financial statements were not proper or adequate financial statements as ordered by Stewart J. on August 18, 2015.
8These are all issues that may be taken into account by the trial judge and which may affect not only the result at trial but the costs order made at trial. Given this context, it is my view that the costs of this motion should also be reserved to the trial judge so they can more accurately meet the standards of fairness and reasonableness. This is only fair given the importance of disclosure obligations and their centrality in family law proceedings: see Fielding v. Fielding 2015 ONCA 901 at para. 84: see also Politis v. Politis, 2016 ONSC 379 at para. 9.
[9]
Conclusion
Accordingly, I conclude that the costs of this motion should be reserved to be determined by the trial judge.
Harvison Young J.
Date: April 6, 2016