CITATION: Lovie v. Lovie, 2017 ONSC 1494

NEWMARKET COURT FILE NO.: FC-16-051509-00

DATE: 20170303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONNA LYNN LOVIE, Applicant

AND:

NEIL MCQUEEN LOVIE, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: Debra L. McNairn, for the Applicant

Grant W. Gold, for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This endorsement pertains to the costs of the motion heard on February 15, 2017, with a ruling released on February 17, 2017.

[2] The applicant was completely successful on the motion, obtaining an order for sale of the matrimonial home and boat despite the respondent's opposition to that relief, while resisting the respondent’s request for an order that the monies from the sale of those assets be held in trust.

[3] This was an important motion. The matrimonial home and boat are the parties’ primary assets. The ruling on the motion ended the need for disclosure impacting on the respondent’s claim, advanced on this motion, that the applicant has been stealing money from his business over the course of their relationship, unless he continues to pursue his claim for unequal division of net family property. It was a motion that gave rise to a ruling that now permits this case to move forward toward resolution with greater certainty and structure. Both parties’ lawyers prepared written argument by way of a factum or summary of argument, and questioning was undertaken specifically for the motion. The respondent also questioned the applicant's current employer, who cooperated in that endeavor.

[4] In addition to the importance of the issues, this matter was made unnecessarily complex by the respondent's position that the applicant had been dishonest with him in relation to their finances during the marriage, when she acted as his bookkeeper. There was no evidence provided on the motion to form a rational basis for such an allegation, as set out at paragraphs 22 to 26 of this Court's endorsement. The respondent's allegations were unreasonable. They greatly increased legal fees on this motion, because the applicant was required to provide something akin to a forensic analysis of her extensive disclosure in order to attempt to satisfy the respondent.

[5] The motion was avoidable. These parties do not have significant incomes or assets. Beginning in May, 2016, through her lawyer the applicant provided a five-page, comprehensive proposal to settle the entirety of the issues arising from their separation. A further comprehensive offer was made by the applicant on August 6, 2016. It is notable that each of these proposals allowed the respondent the opportunity to purchase the applicant's interest in the home, failing which it would be sold and the proceeds divided. It was always known to the respondent that the first mortgage registered against the home would mature on January 1, 2017, as pointed out by the applicant's lawyer in her first proposal. Instead of dealing with the home in an orderly fashion, the respondent clung to the notion that he would be entitled to greater than 50 percent of its value, given his allegations of theft. In light of his financial history, and the obvious contribution made by the applicant to his financial betterment over the marriage, this was a particularly egregious and unreasonable claim to be making.

[6] After the applicant scheduled this motion out of desperation in order to move matters forward, the respondent brought a cross-motion seeking an order requiring the applicant to renew the mortgage for a one year closed term. Although his motion was settled on consent, without prejudice to the applicant's motion for sale, I find it was a step that was made necessary only by the respondent's unreasonable approach to this litigation and his opposition to the orderly sale of assets. This is heightened when one considers, as he admitted during questioning, that he was never in a position to qualify on his own to pay for a mortgage on the house and boat.

[7] Within this mix is a consideration of the applicant's offer to settle the motion, served on December 2, 2016, which is almost identical in form and substance to the order made by this Court. I find that the offer is as favorable to the respondent as this Court's ruling.

[8] The applicant's lawyer has submitted a Bill of Costs seeking total fees and disbursements of $38,597, for which full indemnity is sought. The respondent's lawyer submitted that on a motion of this nature a costs order in the range of $10,000 - $15,000 is appropriate, on a partial indemnity scale. Also, after a conference call convened with both lawyers to hear further submissions, the respondent's lawyer took the position that no costs should be awarded for any preparation by opposing counsel in relation to his client's cross-motion, as that motion settled on consent. I cannot agree; the respondent’s motion arose solely from the unreasonable position being taken by him in this litigation.

[9] Given the three offers, each of which provided the respondent with an opportunity to save significant legal fees, the applicant should not have to bear any of the costs surrounding either of these motions.

[10] Between November, 2016, when the applicant's lawyer began the process of drafting her motion, to the conclusion of cost submissions, the total time spent by Ms. McNairn was 82 hours. Modest numbers are set out for clerk's time of 6 hours and disbursements of approximately $75. This total number of hours was reasonably required for the work that went into this motion, which was, as outlined above, heightened by the respondent's unreasonable position on disclosure and allegations of financial impropriety on the part of the applicant.

[11] In summary, the costs sought are within a reasonable range and appropriate in all of the circumstances. The hourly rate of Ms. McNairn would be anticipated by the respondent, who likewise has retained senior counsel. The respondent was aware of the work generated by the positions taken by him, as the work product of both the applicant and her lawyer was provided to him. The costs sought by the respondent should have been reasonably anticipated by him. There is no sign that at any point he made an attempt to do anything himself to settle this matter on a reasonable basis. The Court was not provided with any settlement offers that may have been made by the respondent; to my knowledge none were made.

[12] For all of the above reasons, this Court orders that the respondent shall pay costs of this motion to the applicant in the amount of $38,500 inclusive, which amount shall be paid directly to the applicant or her lawyer by the solicitor acting on the sale of the matrimonial home, from the respondent's 50 percent share of the net sale proceeds, without the necessity of a signed direction from the respondent.

HEALEY J.

Date: March 3, 2017