CITATION: McDonald v. McDonald, 2016 ONSC 7037
COURT FILE NO.: FS-15-401730
DATE: 20161114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETVVEEN: )
JENNIFER KELLY MCDONALD ) Meysa Maleki for the Applicant
)
Applicant )
)
-and- )
)
ROSS WADDELL MCDONALD ) Stephen Grant for the Respondent
)
Respondent )
) HEARD: WRITTEN SUBMISSIONS
)
COSTS ENDORSEMENT
DIAMOND J.:
[1] In my Endorsement dated September 28,2016, I dismissed the applicant's motion seeking an order permitting her to register Kalle (the 8 year old daughter of the applicant and respondent) in the National Ballet School ("NBS") for the 2016/2017 year.
[2] At paragraphs 21-22 of that Endorsement, I invited the parties to exchange and deliver written submissions if they were unable to agree upon the costs of the motion. I have now received and reviewed those written costs submissions.
[3] The respondent seeks his costs of the motion on a full indemnity basis in the all-inclusive amount of $17,513.00, or in the alternative on a partial indemnity basis in the all-inclusive amount of $9,688.00.
[4] The applicant requests that I exercise my discretion to "make a no costs award".
[5] In Serra v. Serra 2009 ONCA 395, the Court of Appeal for Ontario held that modem costs rules are designed to foster three fundamental purposes:
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(a) to partially indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
[6] As held by Justice Sherr in Oduwole v. Mosses 2016 ONCJ 653, cost awards should always reflect what the court views to be a fair and reasonable amount to be paid by the successful party.
[7] Rule 24(1) of the Family Law Rules creates a presumption of costs to be awarded in favour
of the successful party. It does not appear that the applicant disputes that the respondent was the successful party on this motion. The applicant nevertheless contends that there are additional factors which ought to warrant the exercise of my discretion to depart from the standard rule that costs should follow the event.
[8] The applicant submits that she acted in good faith by bringing the motion out of a genuine interest in the child's best interest. While that may be true, a party's "good faith motivation" ought not to be a relevant consideration in the circumstances of this case. Certainly, where a party acts in bad faith by bringing or opposing a motion, the Court may (and arguably should) take that misconduct into account by either disallowing costs sought by an offending yet successful party, or grant costs on a higher scale against the unsuccessful offending party.
[9] There is no suggestion that the respondent acted in bad faith in opposing this motion, nor did
I make any such finding in my Endorsement. Based upon the record before me, both parties acted in good faith in advancing their respective positions.
[10] The applicant further submits that the respondent failed to serve an offer to settle in contravention of the relevant jurisprudence noting the importance of making offers to settle in family proceedings. While it is true that Rule 24(5)(b) mandates the court to examine a party's behaviour
in relation to the issues from the time they arose, "including whether the party made an offer to settle",
I agree with the respondent that in the circumstances of this motion, the nature of this relief sought by the applicant precluded the exchange and delivery of any reasonable offer to settle. The applicant was requesting that the court permit Kalle to attend NBS. The respondent opposed the applicant's request. There was no possible "middle ground" as evidenced by the fact that the applicant rejected the respondent's suggestions that Kalle attend an alternative ballet school. The applicant did not make an offer to settle herself, and in my view this is due to the fact that any offer to settle would have effectively amounted to an offer to capitulate.
[11] The applicant further points to the "significant disparity in the income and financial circumstances of the parties", arguing that the respondent's refusal to provide full financial disclosure and production of valuation reports in the family proceeding are factors which I ought to consider in denying the respondent his costs of this motion. Specifically, the applicant submits that the respondent has yet to provide a valuation report of (a) his family's "multi-million dollar business" and (b) his interest in a family trust. Those are issues in the family proceeding proper, and were not engaged at all on this motion. It was the applicant who insisted upon bringing this motion, and she
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either knew or was deemed to know the potential costs consequences of being unsuccessful in her pursuit. While the respondent's alleged failure to comply with his disclosure obligations may ultimately result in costs consequences (and I make no finding in that regard at this time), I do not believe that the alleged non-compliance with the Family Law Rules is a factor that can shield the applicant from the presumptive Rule 24(1) consequences of bringing an unsuccessful motion.
[12] Accordingly, I find that costs of this motion ought to be payable by the applicant to the respondent.
[13] With respect to quantum, as previously stated I find that both parties acted reasonably and in good faith on this motion. There is no doubt that the motion was important for both parties, although the issues raised on the motion were not particularly complex or difficult.
[14] I do not believe that this motion was an example of unmeritorious litigation worthy of a costs
award on a full indemnity basis. I have reviewed the respondent's Bill of Costs and most of the time
dockets spent by counsel for the respondent appear to be reasonable. Bearing in mind what the applicant would have reasonably expected to pay in the event she was unsuccessful, in the circumstances of this case I order the applicant to pay the respondent his costs of the motion on a partial indemnity basis in the all-inclusive amount of $8,500.00 payable forthwith.
Diamond J.
Released: November 14, 2016
COURT FILE NO.: FS-15-401730
DATE: 20161114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JENNIFER KELLY MCDONALD
Applicant
-and-
ROSS WADDELL MCDONALD
Respondent
ENDORSEMENT
Diamond J.