Court File and Parties
CITATION: Wilson v. Wilson, 2017 ONSC 4837
COURT FILE NO.: 5085/15
DATE: 2017-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LISA LEE-ANN WILSON Applicant
– and –
DAVIE LEIGH WILSON Respondent
COUNSEL: Sharon G. Sabourin, for the Applicant Shawn Hamilton, for the Respondent
HEARD: in Chambers
DECISION ON COSTS
WILCOX J.
[1] The Decision on Motions dated July 5, 2017, invited submissions as to costs. These have been received from the applicant, but not from the respondent.
[2] Although there were three motions before the court, in the end we are dealing with costs of the motion for disclosure.
[3] A useful summary of the law of costs in family law cases is found in Smith v. Moulder, [2017] O.J. No. 807, where H. A. Vogelsang J. stated:
[7] In Blanchard v. Walker, 2012 ONCJ 799 (Ont. Ct.), Curtis J. said:
14 The courts have a broad discretion to award costs. The general discretion of the courts regarding costs is contained in the Courts of Justice Act, s. 131(1), which sets out specific principles regarding costs:
(a) the costs of a case are in the discretion of the court;
(b) the court may determine by whom costs shall be paid; and,
(c) the court may determine to what extent the costs shall be paid.
15 Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, 181 D.L.R. (4th) 614 (Ont. C.A.), para. 24, and Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (Ont. C.A.):
(a) to indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants.
16 Rule 2 (2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met -- that cases are dealt with justly. This provision needs to be read in conjunction with rule 24 of the rules: Sambasivam v. Pulendrarajah, [2012] O.J. No. 5404, 2012 ONCJ 711 (Ont. Ct) para. 37.
[8] Later decisions augment the general purposes of costs. The fifth, to protect and foster access to justice, was described by Czutrin J. in Jordan v. Stewart, 2013 ONSC 5037 (Sup. Ct.), and the sixth is to sanction and discourage unreasonable conduct: see Atkinson v. Atkinson, 2014 ONCJ 474 (Ont. C.J.).
[4] (However, I confess that I am unable to distinguish the sixth from the third).
[5] Previously, Pazaratz J. had stated in Chomos v. Hamilton, [2016] O.J. 5211 at paras 8-13:
[8] Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M. 2003 18880 (On CA), 2003 18880 (Ont. C.A.); Andrews v. Andrews, [1980] O.N. No. 1503 (Ont. C.A.); Wilson v. Kovalevi 2016 ONSC 163 (SCJ).
[9] Rules 18 and 24, and most of the case law focus on two words: “Success” and “Reasonableness”. The latter entails two components:
(a) Reasonableness of behaviour by each party.
(b) Reasonableness of the amount of costs to be awarded.
[10] In Serra v. Serra 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(a) To partially indemnity successful litigants for the cost of litigation.
(b) To encourage settlement; and
(c) To discourage and sanction inappropriate behaviour by litigants.
[11] The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyer’s dockets. Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), 204 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe 2010 ONSC 1044, 2010 ONSC 1044 (SCJ).
[12] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v. Selznick 2013 ONCA 35, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis 2005 26447 (ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray (2005) 46626 (On CA), 2005 46626 (Ont. C.A.); Guertin v. Guertin 2015 ONSC 5498, 2015 ONSC 5498 (SCJ).
[13] The starting point in any costs analysis is the presumption that a successful party is entitled to costs. Rule 24(1); Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), 2000 22584 (SCJ).
[6] The present case is one in which the legal issues are strictly financial. Matters such as custody and access are not in question.
[7] The Rules indicate what financial information is required, and when. In particular, there is Family Law Rule 13. In summary, a respondent’s financial information is required by 60 days after a service on them on the application. The Family Law Rules also provide a series of useful forms in which to collect and organize the financial information in a family law case. These are the Financial Statements, the Net Family Property Statement, and the Comparison of Net Family Property Statement.
[8] If the required financial information is disclosed and the forms are filled out properly, the answers to the legal financial issues are generally readily apparent.
[9] Unfortunately, obtaining disclosure of the required financial information in family cases has been a long-standing problem. Consequently, the rules regarding disclosure were expanded considerably about the time this case started, in the spring of 2015, including penalties for non-compliance.
[10] As noted in my decision on the motion, the pressure for disclosure in the present case has come from the applicant, and has been ongoing since the case began. Many of the family assets, including the company that provides the family’s income were within the respondent’s control. The respondent has not brought his own motion for disclosure and appears to be satisfied with the disclosure that he has received from the applicant, aside from some criticism of her in affidavits in this regard.
[11] Given that the case began in the spring of 2015, disclosure should have been complete by the summer of that year, save perhaps for some items which took more time to obtain valuations of.
[12] Despite that, the applicant found it necessary to bring her motion in December 2015 seeking disclosure. My order of December 10, 2015, itemized the disclosure required and set a deadline of the end of February 2016, in consultation with and with the agreement of both counsel. I explicitly warned that there would be serious consequences for failure to follow the rules of disclosure.
[13] As set out in my Decision on Motions of July 5, 2017, the applicant continued to seek disclosure, and brought her next motion, first returnable on July 7, 2016, for that purpose. The hearing of that was not completed until June 20, 2017. That should have been plenty of time for the respondent to produce the necessary disclosure such that the completion of the motion would have been unnecessary. Despite that, I found that the respondent had not provided full disclosure, that what he had provided was substantially late and patently inaccurate, and that he had not followed the rules for the use of the Certificate of Financial Disclosure which made the tracking of his disclosure unnecessarily complicated. A further order was made for disclosure by the respondent.
[14] The applicant’s uncontroverted costs submissions outline her efforts to resolve the matter, in whole or in part, even without disclosure from the respondent, without any meaningful response from him.
[15] In these circumstances, I find that the respondent has behaved unreasonably with respect to disclosure. Furthermore, I find that he has acted in bad faith (see S(C.) v. S.(M), 2007 20279 (ON SC), [2007] O.J. No. 2164 (ONSCJ) affirmed 2010 ONCA 196, [2010] O.J. No. 1064 (ONCA)). Consequently, Family Law Rule 24(8) mandates that costs shall be payable on a full recovery basis.
[16] The applicant sought substantial indemnity costs of $17,742.15, being ninety percent of costs of full costs of $19,713.50. In view of Family Law Rule 24(8), however, I order the respondent to pay to the applicant full recovery costs of $19,713.50 immediately.
Wilcox J.
Released: August 11, 2017
CITATION: Wilson v. Wilson, 2017 ONSC 4837
ONTARIO
SUPERIOR COURT OF JUSTICE
LISA LEE-ANN WILSON – and – DAVID LEIGH WILSON
DECISION ON COSTS
Wilcox J.
Released: August 11, 2017