Bridge v. Laurence, 2018 ONSC 1558

Background

1On December 12, 2017 I released reasons in a motion for interim spousal support (2017 ONSC 7417). I have now received written costs submissions.

Analysis

2Fixing of costs is a discretionary exercise pursuant to s. 131 of the Courts of Justice Act. In family law cases that exercise is to be summary in nature guided by the criteria set out in Rule 24 and by the primary objective of the Family Law Rules which is to deal with cases justly. Under the Family Law Rules the court need not be bound by artificial categories of costs such as those which formerly existed at common law or are articulated under the civil rules. Rather the court is to consider all relevant factors in a nuanced and flexible manner and may fashion an award of costs which lies between nominal costs at one end and full indemnity at the other.¹

3It is clear that the parties have spent an inordinate amount in preparing for and arguing this motion in part because it was originally part of a much more complex omnibus motion and in part because of the voluminous material. There were also prior motions leading up to this motion and unless the costs of those motions were specifically reserved to the hearing of this motion, they should not be included.²

4Overall the applicant was successful on the motion insofar as she obtained an order for interim spousal support. Of course the order ultimately made by the court which was an order for interim lump sum spousal support along with other relief was not precisely what either party had contemplated.

5It is therefore difficult to measure the result against the various offers to settle which have now been drawn to my attention. As was apparent in my reasons for decision, the dispute between the parties has always had an air of surreality because the respondent has always been prepared to pay the applicant a considerable sum of money. The dispute has been over the form the payment should take, conditions attached to such payment and implications for the final resolution of the application.

6In my view a major driver of costs in this motion was the unnecessary and inappropriate fixation by the respondent in conducting what amounted to a forensic audit of the applicant’s finances. As I stated in my reasons, on a motion for interim support when there is undoubted ability to pay, the determination of the need for support is not to be calibrated to such a fine degree. Moreover the fixation with demonstrating that the applicant had moved money between her own bank accounts or had given part of an inheritance to each of the children was misguided and ultimately irrelevant to determining the motion. This determination to overcomplicate the case has previously been the subject of adverse judicial comment and a costs award.³

7On the other hand, it has always been open to the applicant to accept a lump sum payment as an advance on equalization. As the offers to settle disclose, the respondent has been prepared to pay up to $1,000,000.00 provided the applicant agreed not to seek a further amount of temporary support. This is of course indicative of the problem at the heart of this litigation. The respondent is prepared to advance funds in excess of the amount demanded by the applicant but he attempts to attach conditions to which she will not or cannot agree.

8Under the circumstances, this is not a case for full indemnification but the manner in which the motion was argued, the quantity of material and the steps taken leading up to the motion as well as the time actually spent in argument justify a substantial award.

Disposition

9Having due regard to all of the factors in the rule and particularly those enunciated above, I fix the costs of the motion at $85,000.00. The respondent shall pay this amount to the applicant within 30 days.