Court File and Parties
COURT FILE NO.: FS-18-76 DATE: 2018 10 12 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Robert Willis, Applicant and: Fei Hung, Respondent
BEFORE: Justice G.D. Lemon
COUNSEL: Michael McKee, Counsel for the Applicant Marcy Segal, Counsel for the Respondent
HEARD: In Writing
Costs Endorsement
The Issue
[1] Ms. Hung brought a motion to have Mr. Willis found in contempt, to have him produce documents pursuant to an earlier order and to pay funds into court.
[2] For procedural issues, the contempt motion was withdrawn. The request for payment into court was dismissed as res judicata. Mr. Willis was ordered to produce the documents that he had already been ordered to provide.
[3] Mr. Willis says that he was successful and therefore seeks costs in the amount of $8,980.45. Ms. Hung submits that she was successful and seeks costs of $5,650.00.
Authorities
[4] The Family Law Rules provide the following with respect to an award of costs:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(11) A person setting the amount of costs shall consider,
(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.
[5] Costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behaviour by litigants. (See: Phuong v. Chan).
[6] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”.(See: Boucher v. Public Accountants Council for the Province of Ontario, at para. 24).
[7] In Berta v. Berta, 2015 ONCA 918, Cronk J. said:
[92] In Biant v. Sagoo, the court considered the costs award scheme under the Rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe, a discretion under r. 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
[93] This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes.
[94] Thus, a successful party in a family law case is presumptively entitled to costs. An award of costs, however, is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith) and r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party. [Citations removed]
Analysis
[8] The crux of this motion was to have Mr. Willis produce the records that he had been ordered to produce April 25, 2018. It may be helpful to return to what I said in my Endorsement of September 10, 2018:
Mr. Willis acknowledges that he has not provided the income tax documents as ordered. Counsel for Mr. Willis suggested that Justice Andre’s order relieved Mr. Willis from filing his income tax returns. However, the motion to Andre J. did not refer to Justice Bloom’s order. That failure alone sets aside Justice Andre’s order. In any event, Justice Andre only dealt with the manner of filing Mr. Willis’ financial statement; it did not relieve him of his disclosure duties.
Mr. Willis’ counsel also suggested that since Mr. Willis had not filed his income tax returns with the CRA, he had nothing with which to comply with Justice Bloom’s order. He submits that he did not agree to file, only to provide copies if he did file. However, the order did not say that Mr. Willis could choose whether or not to file his income tax returns with the CRA. It said that they were to be provided to Ms. Hung along with notices of assessment. Refusing or failing to file with the CRA was not an option open to Mr. Willis.
[9] In his costs submissions, Mr. Willis acknowledges:
- The applicant has been holding off on his tax returns for various reasons, and had sought relief by way of a 14-B motion. [Ms.Hung] was successful on this one claim for relief.
[10] There were offers to resolve the issues between the parties. Mr. Willis was silent as to the issue of productions in his offer. Clearly, Ms. Hung was required to bring this motion and was successful. Mr. Willis’ arguments were without merit and unreasonable.
[11] The Court of Appeal, as recently as June 8, 2018, Sickinger v. Sickinger, 2018 ONCA 526, at para. 36, emphasized the importance of financial disclosure in a family law matter:
“It is worth repeating that rules for disclosure and the sanctions of non-compliance are ‘the centerpiece of the Family Law Rules.’ (See para [36]). The Court continued to quote their former decision in Roberts v. Roberts, 2015 ONCA 450 as justification for awarding ‘full costs’:
“The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time spent and the financial adjudication is stalled.”
[12] While Ms. Hung was unsuccessful in having Mr. Willis found in contempt in legal terms, as a practical matter, on any lay definition of the word, Mr. Willis has been contemptuous of the order and of Ms. Hung. While Ms. Hung’s counsel failed to follow the procedural rules to make a finding of contempt, Ms. Hung was entirely reasonable in bringing the motion; Mr. Willis was entirely unreasonable in ignoring his court-ordered obligations.
[13] Ms. Hung was successful and Mr. Willis was not. She is entitled to costs and he is not.
[14] Although Ms. Hung was unsuccessful on some of the matters requested, her Bill of Costs indicates an amount of $7,193.23. Her request of $5,000.00 plus HST properly considers the degree of success.
[15] Mr. Willis cannot be surprised by the amount requested if he were unsuccessful; his request is for more. Mr. Willis’ counsel spent 17.5 hours on a one and a half page affidavit and the lawyer’s law clerk carried out 11.6 hours of research to find 4 cases. He cannot be surprised that she seeks $5000.00 in costs for more work than was required of his counsel. Indeed, I am surprised that her request was so low.
[16] Taking all of those factors into consideration, I order Mr. Willis to pay costs fixed in the amount of $5650.00 payable forthwith.
Justice G.D. Lemon