Court File and Parties
ONTARIO Court File Number: FS-15-403624 Superior Court of Justice at 393 University Avenue, 10th Floor Toronto, ON M5G 1E6
Endorsement
F.L. Myers, J.
Date: September 22, 2016
Applicant(s): Cara Lea Loncar Present
Counsel: David Godard Present Duty Counsel
Respondent(s): John Loncar Present
Counsel: Shelley C. Quinn Present Duty Counsel
Endorsement
The court has received written submissions on costs. The parties agreed to sell the matrimonial home. They consented to an order to that effect before my colleague Justice Pollak. The applicant then changed her mind. She decided that rather than sell the house, she would buy out the respondent’s interest. She says that she had altruistic motives. But she then proceeded to defy the order of the court to which she had consented. The respondent moved to enforce the court’s order after trying unsuccessfully to cajole compliance. The applicant brought a cross-motion seeking interim support. The respondent had been paying and continues to pay voluntary set-off support without prejudice. Rather than complying with the order made by Justice Pollak, the applicant basically used the sale of the house as a lever to try to extract more support money from the respondent. At the hearing, I enforced the consent order and declined to order interim support although I noted that it was possible that the facts at trial might lead to a different conclusion on support.
The applicant concedes that the finding that she defied a subsisting order is sufficient to hold that she acted unreasonably for costs purposes. She argues that she was trying to buy out the respondent to benefit a special needs child. She also argues that the respondent likely owes significant equalization in light of his public service pension. Therefore, she submits that he will not derive any benefit from the sale of the house. None of those excuses amounts to a lawful justification for intentionally defying a court order. The child’s needs were not sufficient to stop the applicant from initially consenting to the sale. I do not accept as legitimate her effort to wrap herself in her child’s needs now. There is nothing more than the normal disruption of moving proven in this case. Moreover, it is not for the applicant to decide what the respondent wants. If she takes the equity in the house, then he will likely keep more of his pension. While the two alternatives may be economically equivalent, the parties’ agreement before Pollak J. presumably reflected a mechanism for disentangling their assets that met their respective goals and expectations. It is not for the applicant to now dictate an alternative to the respondent.
The applicant also notes that she may win support at trial so that her loss of the motion is diminished. However, what is at issue is the costs of the motion. She always had the right to advance a claim for support at trial. She advanced it at a motion and in that endeavour she was wholly unsuccessful. Moreover, there is an extortionary aspect to the bringing of a motion for support as a cross-motion in response to a motion for a compliance order. In my view, on the facts, the applicant’s behaviour in refusing to comply with a consent order and her cross-motion were both unreasonable and ought to attract a significant costs penalty. More correctly stated, in my view, the respondent should not be forced to pay his full legal costs as a result of the unreasonable steps taken by the applicant that forced him to incur those fees and disbursements. Rather, in these circumstances, he should be entitled to recover all or nearly all of the costs that he incurred.
The applicant asks that any costs awarded against her only be payable out of her share of equalization. Otherwise, she submits that an award would inflict substantial hardship upon her. She ignores that she inflicted on the respondent a current obligation to incur and pay legal costs. He has had to pay costs to respond to unreasonable and contemptuous conduct while she would like to wait and repay him when convenient for her cash flow. Moreover, just as I was not satisfied that the applicant made out a case for need for enhanced interim support, I am not satisfied on the evidence that there will be any real hardship suffered by the applicant in paying costs now. Rather, her arguments simply put her wants first and give no thought to the effect of her conduct on the respondent.
The respondent seeks costs on a full indemnity basis of $8,8853.60. The applicant complains that a junior spent too much time on the motions. I have reviewed the respondent’s bill of costs and am satisfied that the junior’s time was billed at an appropriately low rate to account for any reduced efficiency. In all, the time and rates appear to me to be reasonable in any event. In my view, the respondent is entitled to his costs on a substantial indemnity basis. A party who deliberately breaches a consent order and who tries, explicitly or implicitly, to extract money from the other side as a cost of compliance ought to pay at least substantial indemnity costs to the innocent party. At 90%, the respondent is entitled to reimbursement for legal fees of $7,538. All-in, with HST on the fees plus disbursements (including HST) the applicant shall pay the respondent costs of $8,015.99. The sum of $5,000 is payable forthwith to bring home to the applicant the fact that she required the respondent to incur fees in the present to respond to her actions. The remainder is payable in 60 days.
Absent very cogent evidence of economic hardship to a child or children, in my view costs should not be deferred very readily in cases involving unreasonable conduct. Allowing litigants to defer payment of costs to setoff against a future equalization pot of gold risks defeating the goal of providing actual and timely indemnity to the innocent party. Moreover, adding obligations to the final equalization calculus may make settlement more difficult as it will incent the paying party to ask for more and to be less inclined to settle. Finally, especially in a case where costs are ordered as a result of unreasonable conduct, deferring payment prevents the party who took unreasonable positions from feeling the sting of the costs award and leaves the innocent party indefinitely on the hook for lawyer’s fees that were unreasonably inflicted on him or her.
F.L. Myers, J.