SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joycelyn Willock, Applicant
AND:
Oliver Willock, Respondent
BEFORE: Harvison Young J.
COUNSEL: unrepresented, not appearing
Ms. Sofia Ashraf, Mr. Allan Papernick, Q.C. for the Respondent
HEARD: Trial heard January 9, 2017
COSTS ENDORSEMENT
1On January 9, 2017, the trial in this matter was held before me. The application had been commenced in 2008. As I indicated on my endorsement on the same date, the evidence was comprised of affidavit evidence. The only issue was that of equalization. The proceeds of the sale of the matrimonial home have been held in trust since it was sold in 2012 and are approximately $331,384. I have held that these proceeds should be divided pursuant to the draft order signed on January 9, 2017.
2As my endorsement indicates, Ms. Willock, the applicant, did not appear, though I am satisfied she was duly served.
3Counsel for the Respondent Husband seeks costs on a full indemnity basis in the amount totaling $141,942.90 inclusive of HST and interest. Of this amount, $103,187.92 + $16,778.74 are amounts with respect to the period between January 2009 and September 2011. I note that it includes costs orders previously made and outstanding that are payable by Ms. Willock in the amount of $13,000. The balance sought arises from the work done on the file by Larsen Law & Associates, the firm that purchased Mr. Allan Papernick, Q.C.’s firm as of December 31, 2015.
4The Respondent submits that the Applicant’s conduct in this matter has amounted to bad faith in that she has caused repeated delays, behaved unreasonably and employed tactics that have meant that neither party has had access to the proceeds of the sale of their former matrimonial home for many years. I am grateful to Mr. Papernick for his assistance to the court on January 9 along with Sofia Ashraf of Larsen Law & Associates. He readily acknowledges that the amount claimed is high but submits that the amounts expended on the file were necessary given the conduct of the Applicant which was unreasonable and in bad faith.
The factors which the court must consider
5The factors to consider in determining the amount of costs in family law matters are set out in r. 24(11) of the Family Law Rules, O. Reg. 114/99, as follows:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
6Of course, reasonableness is the overriding important principle: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). Ability to pay may be relevant to the issue of the quantum or scale of costs, but not to another party’s entitlement to costs: Izyuk v. Bilousov, 2011 ONSC 7476, 7 R.F.L. (7th) 358.
7As Curtis J. notes in Blanchard v. Walker, 2012 ONCJ 799, 25 R.F.L. (7th) 487, at para. 15, modern costs rules are designed to foster three fundamental purposes:
(a) to indemnify successful litigants for the cost of litigation;
(b) to encourage settlement; and
(c) to discourage and sanction inappropriate behaviour by litigants. [Citations omitted.]
8At para. 21 of Blanchard, Curtis J. states:
An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer. Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2002, S.C.C., supra, para. 25.
Application to this case
9I am satisfied that the conduct of the Applicant Wife has caused the delays which have clearly run up the costs very significantly.
10The record before me is replete with examples of conduct on the part of Ms. Willock that caused unnecessary delay and expense to Mr. Willock. For example, there are at least two “11th hour” adjournments on the eve of trials that had been scheduled, occasioned by Ms. Willock’s request for time to retain new counsel. She is, of course, entitled to counsel and to counsel of her choice, but the pattern (she had at least three different legal counsel over the course of the litigation) was accompanied by circumstances that caused delay to the litigation and unnecessary expense to the respondent. Correspondence in the record indicates that over the last period of time, further delay was occasioned because counsel was unable to get instructions. That counsel, Ms. Garfin, eventually got off the record as well. At one point, the parties had agreed to mediation and, as Kiteley J. noted in one endorsement, there was some promise that the matter could be resolved. But although Mr. Willock promptly completed the intake forms required, Ms. Willock never did.
11In addition, Ms. Willock refused to provide a telephone number or address, providing only a post office box for service. This caused additional expense at various stages, both because the court was not certain that she knew about certain steps and because it was difficult for her counsel (when she was represented) to contact her in a timely manner. It meant, finally, that Mr. Willock’s counsel did not know whether she would attend at trial.
12Mr. Willock also made offers to settle in an attempt to end the litigation. While none of these constituted a r. 49 offer under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (partly because of a change in the Pension Benefits legislation that ultimately worked to her advantage), these offers demonstrate a bona fide attempt to find a reasonable solution.
13I am satisfied for these reasons that Ms. Willock’s conduct was wilful and unreasonable and was therefore in bad faith, such that costs on a full indemnity basis are justified.
The amount claimed
14The Respondent Husband claims which total over $140,000 as I have already indicated. Most of this work was done by Mr. Papernick before he sold his practice, at the end of 2015, to the firm at which Ms. Ashraf is an associate. Mr. Papernick’s bill of costs documents the fact that he did reduce his hourly rate “out of sympathy” for Mr. Willock. Given Ms. Willock’s conduct as outlined above, which occurred over a number of years, I do not find that Mr. Papernick’s billing was excessive. I find that the time spent by Ms. Ashraf, who was new to the file, in preparation for the trial was reasonable. However, I do have some concerns about proportionality given the fact that the total amount of Mr. Willock’s share of the house proceeds (by the time of trial) was only approximately $115,000. The matrimonial house was sold in 2012.
15I also note that there is some duplication in the amount claimed in the bill of costs because the order of this court dated January 9, 2017 provides for the amount of approximately $16,000 (inclusive) in previously ordered costs to be payable from Ms. Willock’s share of the house proceeds, leaving the claim still unpaid at $125,164.16.
Conclusion
16For all of the above reasons, I find that Ms. Willock shall pay costs in the amount of $55,000 to Mr. Willock, payable forthwith. An order shall issue accordingly. Approval as to form and content of this order is dispensed with.
Harvison Young, J.
Date: January 20, 2017