Court File and Parties
COURT FILE NO.: FC-16-51772-00 DATE: 20170731 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: MALGORZATA JOLANTA ANDRUSZKIEWICZ Applicant – and – WIESLAW JAROSLAWSKI Respondent
COUNSEL: H.E. Warren, for the Plaintiff J. Pliszka, for the Respondent
HEARD: June 2, 2017
Ruling on Costs
DOUGLAS J.
[1] I have received the parties’ written submissions on costs.
[2] This was the Applicant’s motion for spousal support, retroactivity, security for support and release of one half of the net sale proceeds of the parties’ jointly owned home.
[3] There was no cross-motion from the Respondent.
[4] There could be no doubting that the Applicant was successful on her motion. I granted all the relief sought save and except security for support.
[5] The Applicant served an offer but it does not trigger cost consequences.
[6] The offer tendered by the Respondent is problematic. It does not conform to the requirements of Rule 18 which requires that it be signed personally by the party making it and also by the party’s lawyer. Further, it addresses proposed resolution of the proceeding as a whole, and not the motion. In any event, even ignoring these shortcomings, the offer would not trigger cost consequences.
[7] The Applicant is presumptively entitled to an award of costs of this motion pursuant to Rule 24.
[8] The Applicant submits that the Respondent has conducted himself in bad faith. While I certainly expressed concerns with respect to the quality of the Respondent’s evidence and his lack of care in responding to requests for disclosure, those requests were not particularly germane to the issues on the motion which depended primarily upon establishing the parties’ incomes.
[9] Bad faith can be established by conduct that is intended to deceive or mislead another. [1]
[10] In S(C) v. S(C), 279 (ONSC) Perkins J. defined bad faith as follows:
“In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive other party or the court. A misguided of genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point, a party could be found to be acting bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.”
[11] There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. [2]
[12] To establish bad faith the court must find some element of malice or intent to harm. [3]
[13] In the circumstances before me I am not prepared to make a finding of bad faith although the avoidant nature of the Respondent’s affidavit evidence can certainly be described as “unreasonable”.
[14] The issues addressed were important to the parties but not particularly complex or difficult.
[15] As noted above, the Respondent’s behaviour in the motion, reflected in the quality of his affidavit evidence, was not reasonable.
[16] The lawyers’ rates are not unreasonable given their respective levels of experience and expertise.
[17] The time spent on the motion was not excessive.
[18] Expenses associated with the motion were not unreasonable.
[19] The Applicant seeks costs inclusive of disbursements and HST in the amount of $30,151.70 payable from the Respondent’s share of the proceeds of sale of the family home. This represents full indemnity to the Applicant.
[20] The Respondent’s Bill of Costs reflects total fees and disbursements of $11,221.80. It is interesting to note that the Respondent’s counsel spent almost 42 hours on the motion whereas the Applicant’s counsel spent 35 hours. It is therefore not open to the Respondent to argue that excessive time was expended by Applicant’s counsel on the motion. There is a significant differential between the hourly rate for Applicant’s counsel versus that of Respondent’s counsel and this differential accounts for much of the difference between the parties’ respective Bills of Costs.
[21] Ultimately the objective is a result that is fair and reasonable from the perspective of a reasonable unsuccessful party.
[22] Considering all of the foregoing factors, I award costs to the Applicant fixed in the all-inclusive sum of $15,000, payable forthwith from the Respondent’s share of the proceeds of sale of the family home.
DOUGLAS J. Released: July 31, 2017
Cited Cases and Legislation
Legislation:
- Family Law Rules, O. Reg. 114/99 (Rules 18, 24, 24(8))
Case Law:
- S(C) v. S(C), 279 (ONSC)
- Erickson v. Erickson, 675 ONSC
- Stewart v. McKeown, 2012 ONCJ 644 (OCJ)
- Harrison v. Harrison, 2015 ONSC 2002