Dove v. Dove, 2016 ONSC 6240

CITATION: Dove v. Dove, 2016 ONSC 6240

BARRIE COURT FILE NO.: FC-15-725-00

DATE: 20160927

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Mary Emily Dove Applicant

– and –

Michael Peter Dove Respondent

Alex Finlayson, for the Applicant

David Winnitoy, for the Respondent

HEARD: June 16, 2016

COSTS ENDORSEMENT

MCGEE J.

[1] This is the costs decision on a Motion heard June 16, for which reasons were released June 23, 2016. Success was divided on the applicant’s motion for disclosure. The respondent’s cross-motion for bifurcation was dismissed.

[2] The applicant seeks costs of $20,000 for the attendances of February 18, and June 16 2016; inclusive of HST and disbursements. She calculates this amount as full recovery of $26,787 less a 25% reduction to reflect her lack of success on certain of the disclosure issues. The respondent proposes that costs be fixed in the amount of $7,500, payable in the cause.

[3] Neither party served an Offer to Settle this motion. The failure to serve an Offer is an adverse factor when assessing costs.[^1] Parties and their lawyers have a positive obligation to behave in ways which enable the court to move cases forward. It should be a fundamental step in any family law case to serve at least one Offer to Settle.

Costs for February 18, 2016

[4] The lost attendance of February 18, 2016 is an atypical subject matter for costs. The adjournment was occasioned by an issue raised by the motions judge on the date of the hearing. Both counsels were ready and willing to proceed on that day. Neither had anticipated the issue. The issue was not subsequently pursued. I am not prepared to assess costs for the attendance. Parties shall each bear their own costs of the day.

Costs in the Cause

[5] The respondent suggests that paying costs on this motion would be an absurd result should he subsequently be successful in having the Separation Agreement, and the terms of the spousal support release upheld. He cites paragraph 19 of my reasons in support of this premise. That paragraph does not extend to the costs of a motion for an order to bifurcate, only the costs incurred to defend an action to set aside a domestic contract, including costs of providing disclosure.

[6] It is not bifurcation that will be determined at trial, but whether the spousal support release, or all the releases within the parties’ Separation Agreement will be set aside.[^2] Bifurcation is a process, not an outcome. The respondent was unsuccessful in creating an alternative process to decide the applicant’s claim.

[7] I decline to order costs in the cause.

Quantum of Costs

[8] Each counsel sets out in excellent form the case law applicable to an award of costs. I concur with the court’s role when assessing reasonable costs being analogized to that of a gatekeeper, that “winning does not mean the loser has to write a “blank cheque[^3]”; and that costs must be proportional.

[9] Costs must not only be proportional, but be ordered within a range that a losing party might expect to pay a successful party. They are not designed to be unduly punitive, but rather, to allow a successful party to recover his or her reasonable costs and to create settlement incentives by shifting risk to a party holding forth an unreasonable position.

[10] The factors in determining costs are set out in Rule 24 (11). The court is to consider the importance, complexity or difficulty of the issues, the lawyer’s rates, and the time properly spent on the case, and the reasonableness or unreasonableness of each party’s behaviour in the case.

[11] The issues involved in attacking a Separation Agreement are by definition, challenging. I fault neither counsel for taking a careful and comprehensive approach. That said, I do find that certain aspects of the applicant’s Bill of Costs demonstrate fees well in excess of what is necessary on a motion, even when one is cautious. At the hearing, this judicial officer expressed repeated frustration with the length and scope of applicant’s oral submissions on what appeared to be fairly narrow questions, with case law precedents.

[12] I take no issue with the applicant counsel’s hourly rate, although query whether some work might have been completed by an assistant at a lower hourly rate. I do reduce the amount of time spent. I do so moderately, as I do not have the respondent’s counsel’s Bill of Costs to compare.

[13] When I review the applicant’s Bill of Costs, the time spent with Ms. Alterman, the review of correspondence and preparation of documents and legal research appear disproportionate to the issues of disclosure and bifurcation. Many of those expenses are better applied to trial preparation, and can be included in (a) subsequent Bill(s) of Cost, should the applicant be successful.

[14] With respect to litigation conduct, I find it unreasonable that the respondent resisted any disclosure until the morning of the motion. The scope of disclosure sought by the applicant was also unreasonable. It overreached the orders available and drew a lengthy response from the respondent.

[15] All in all, after consideration of the factors governing an award of costs, the relative success of each motion, the lack of an Offer, and the reasonable litigation conduct of each party, I am prepared to award the applicant costs in the amount of $8,000 plus HST, inclusive of disbursements. Costs may be paid in three equal monthly instalments.

Request for Clarification at Paragraph 9 of Applicant’s Costs Submissions

[16] Production of the respondent’s solicitor-client privileged files is not res judicata.

Justice H. McGee

DATE: September 27, 2016

[^1]: Laing v. Mahmoud, 2011 ONSC 6737 [^2]: Thus distinguishing Sea Vision Marine Products Ltd. v. McKitrick 1998 CarswellOnt 373 [^3]: Jackson v. Mayerle 2016 CarswellOnt 7722 (ONSC)