Cowan v Cowan, 2016 ONSC 3254

Court File and Parties

Court File No.: 38343/15 Date: 2016 05 17 Superior Court of Justice – Ontario

Re: Maria Emilia Cowan And: John William Cowan

Before: Trimble J.

Counsel: C. Haber, Counsel for the Applicant A. Stoner, Counsel for the Respondent

Costs Endorsement

[1]

Introduction

In paragraph 33 of my endorsement of 5 April, 2016, I invited submissions from the parties addressing who should pay costs to whom and in what amount.

2The parties’ cost submissions reflect the approach of each to the litigation. Each party has been represented by very experienced legal counsel. In spite of this, the parties fight every fight, give no quarter, make no concession.

3The Wife brought her motion for support on an urgent basis, without a case conference. I adjourned the Wife’s motion, on consent, to a long motion on February 4, 2016 to permit the Husband to file his responding material and so the motion could be conferenced. The Wife’s motion was conferenced on December 7, 2015. The Husband, in responding to the Wife’s motion, brought a cross motion for various relief, including for an order to have production of the files of the lawyers who had given legal advice to the Wife before the Marriage Contract and Co-ownership Agreement were signed, and to examine the lawyers as witnesses to the Application. On February 4, the matter was adjourned again to February 22 because the Wife filed a substantial affidavit in reply to the Husband’s cross-motion. The Wife would not consent to an adjournment, so Gibson, J. ordered it to February 22. On February 22, I refused to hear the Husband’s cross motion because a) it had not been conferenced, and b) there was no time to hear it. I understand that there was a comprehensive case conference in the Application in March, 2016.

[4]

Positions of the Parties

The Wife seeks costs from the Husband of $4,760 for the 7 December, 2015 case conference, and of $38,954 for the attendances on 4 and 22 February, 2016. These are at substantial indemnity rates. The Husband seeks costs from the Wife of $5,580 for the case conference and $38,837 for the motion attendances. Both costs assessments are at a substantial indemnity basis.

5Each says that s/he is entitled to costs on a substantial indemnity basis, based on the unreasonable behaviour of the other. Each has provided cost submissions laden with invective and disdain, showing little of the restraint that one would expect counsel to bring to a proceeding.

6The Wife claims that she is successful and has acted reasonably, but that the Husband has been unreasonable. He has “ refused to make full and timely financial disclosure” or to file an adequate Financial Statement. He has refused to provide an income analysis report. Her submissions are sprinkled, liberally, with bolded words and phrases highlighting the Husband’s failures, lest I miss the Wife’s meaning plainly conveyed by the words used, regardless of their type face. She accuses him of playing a game of “catch me it you can” (see para. 9 of submissions).

7The Husband says that he was successful and acted reasonably, but the Wife has been unreasonable. He says that the Wife’s Application is unnecessary and flies in the face of the Marriage Contract. She failed to grant adjournments when they were requested reasonably. She continues to say that there has been insufficient disclosure when there has been substantial (although, as I commented in my reasons, not complete) disclosure. He says twice that the Wife’s submissions are “misleading”. He says that motion was inappropriate, too early, and not proportional. The Husband’s language is dismissive and disdainful. For example he says “There was obviously no thought given by the Wife to the proportionality of this motion or to the benefits of proceeding through the litigation process brought in a more logical manner.” The Husband says in his submissions that he made significant disclosure, yet I found that he did not. Further, he admits he did not make full disclosure, saying that the Wife “was asking for significant disclosure at an abnormally quick pace and notwithstanding the parties’ Marriage Contract, which was specifically meant to exclude the husband’s business assets and limit his income for support purposes.” He accuses her of making “only passing efforts to obtain financial disclosure from the Husband’s solicitor prior to bringing her motion for support.”

8The parties’ approach to litigation continued during our conference call on 9 May, 2016, concerning paragraph 32 of my endorsement, and whether that paragraph dealt with house related expenses incurred before the date of my reasons. There might have been an arguable point based solely on the 2nd and 3rd sentences in paragraph 32. The second to last sentence of that paragraph however, ought to have put the issue to rest. I said that those expenses were reserved to the Trial Judge. Most of the 20 minutes of the 9 May, 2016 conference call were consumed by counsel arguing, and about half of that arguing occurred after I provided my interpretation of paragraph 32, with each lawyer telling the other why her interpretation of paragraph 32 was appropriate.

9In assessing costs, I have considered s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the jurisprudence thereunder.

10Costs awards have a number of purposes, three of which are to indemnify (partly) successful litigants, encourage settlement, correct behaviour of the parties (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10). Generally costs should follow the event (see Bell v. Olympia & York (1994), 17 O.R. (3d) 135 (C.A.)). Costs should to be proportional to the issues in the action and the outcome, and reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants (2004), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., [2004] OJ No 4651 (C.A.)). Offers to settle must also be considered. Conduct of the parties is also relevant, where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722 , 100 O.R. (3d) 66 (C.A.)).

[11]

Analysis

The Applicant Wife was more successful than the Responding Husband, but only modestly so. I awarded her interim spousal support of $7,500/ mo. (much less than the $25,259/mo. that the Wife calculated was owing, and more than the $5,000/mo. that the Husband paid, based on his calculations). In my award of spousal support, I held that the marriage contract between the parties was presumptively valid (which was the Husband’s submission and which the Wife conceded for the purpose of the motion, but which the Wife challenged in the application).

12I awarded her interim exclusive possession of the matrimonial home beginning 1 June, 2016 (as she requested. Although he did not want it, the Husband claimed exclusive possession on the basis that ‘If she wants it, I want it.’). I made orders concerning expenses for the home pending and after the Husband’s leaving it.

[13]

Conclusion

Under normal circumstances, the Wife would be entitled to a modest cost award reflecting her modest success on the motion. There shall be no costs, however. Both parties’ behaviour in this litigation needs correction. I agree with the Wife that the Husband’s production has not been adequate. I found that his approach to spousal support under the Marriage Contract was not reasonable given his deficient production. I was left to speculate about aspects of his income under the Marriage Contract. On the other hand, I agree with the Husband that the Wife’s approach to this motion is not reasonable. Her approach to support was unfounded, but only in light of the minimal evidence available from the Husband with respect to his income for support purposes under the Marriage Contract. She ought to have brought a motion for disclosure. Instead, she used the minimal disclosure the Husband provided and argued that inferences ought to have been drawn supporting her spousal support claim of over $24,000/mo.

14Based on their submissions, the parties incurred over $38,000 apiece for this motion on spousal support. Neither side prevailed in any substantial way. The Application has not advanced in any material way. Much of their approach was emotionally driven, which was not reasonable given that both had senior, experienced legal counsel.

Trimble J.