Court File and Parties
COURT FILE NO.: FS-18-4390-0000 DATE: 20181207 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Farah Soraya Shah, Applicant AND: Edward Irvine, Respondent
BEFORE: Sanfilippo J.
COUNSEL: Valois Ambrosino, for the Applicant Kevin G. Caspersz, for the Respondent
HEARD: Costs Submissions in Writing
Endorsement on Costs
Overview
1The Applicant brought an urgent motion, prior to issuing an Application, prior to a case conference and without notice to the Respondent, for broad, far-ranging relief. On the Applicant’s affidavit evidence, an interim order and a restraining order were issued on August 14, 2018, for review in seven days. As soon as the Order and motion materials were served on the Respondent, a flurry of activity ensued. Two hearing dates and five affidavits later, the motion came before me on September 11, 2018. The main issue in contention was whether five more affidavits could be tendered into evidence. I ordered that the parties attend a case conference prior to the substantive determination of the motion, which grew to include a total of nineteen affidavits. At the case conference conducted on October 3, 2018, the parties agreed on terms for settlement of the motion.
2As part of their settlement of the motion, the parties agreed that they could make written submissions to me so that I could determine their competing claims for costs. The Applicant seeks $46,320.66 in costs. The Respondent claims costs of $85,603.33. The parties together incurred $131,923.99 in costs in the first 50 days of this case to address a motion for interim relief.
3For the reasons that follow, I award the Applicant costs in the amount of $17,695.02, all-inclusive, payable by the Respondent. The costs shall not be payable forthwith, but rather shall be paid by the Respondent to the Applicant upon adjudication of the economic issues at trial, or as part of any settlement of the economic issues raised by this Application.
I. Background
4The applicant, Farah Soraya Shah, and the respondent, Edward Irvine, were married on August 6, 1995. I will at times refer to Ms. Shah as the Applicant, or the “Wife”, and to Mr. Irvine as the Respondent, or the “Husband”, where this adds clarity to what follows.
5The parties have two children, an eleven-year old son and a seven-year old daughter. The family resided in a matrimonial home in the Respondent’s name, and also owned a condominium that is registered in the Applicant’s name. The Respondent is the sole owner and president of a privately-held business, where the Applicant worked for some 15 years.
6The parties separated in January 2018. The Husband left the family home and moved into the condominium. The Applicant deposed that the parties continued to work together to facilitate a continued relationship with the children. However, in May 2018, the Husband locked the Wife out of the premises of his window and door business, where she worked. The Wife was deprived of any source of income and began to suspect that the Husband was withdrawing funds from the business and personal bank accounts. The Wife brought an urgent motion on August 14, 2018 to seek remedies in relation to the Husband’s conduct that, according to her evidence, caused the Wife to have concerns for her well-being and that of the children.
II. The Motion Practice
A. The Applicant’s Urgent Motion on August 14, 2018
7On August 14, 2018, the Applicant brought an emergency motion, in advance of a case conference, on the basis of alleged urgency. An Application had not yet been issued. The Respondent was not provided with notice, even though this could easily have been done. On the basis of the evidentiary record presented by the Applicant, Paisley J. issued a temporary order on August 14, 2018 (the “August 14, 2018 Order”) that included the following relief:
a) The Applicant was granted custody and primary care of the two children;
b) Subject to further court order or agreement of the parties, on a temporary basis, the Respondent was denied any access to the children;
c) The Applicant was granted exclusive possession of the matrimonial home and its contents;
d) The Respondent was ordered to vacate the condominium;
e) A restraining order was issued, which the Toronto Police Services and Ontario Provincial Police were directed to enforce, restraining the Respondent:
(i) from annoying, molesting or harassing the Applicant or the children;
(ii) from communicating with the Applicant or the children directly, except through counsel;
(iii) from being within 500 metres of the matrimonial home, the children’s schools, the Applicant’s employment or anywhere the Applicant or the children are known to be.
f) The Respondent was restrained from transferring, disposing of, depleting, encumbering or in any way dealing with any and all net family property, including his disability insurance and his RRSPs;
g) The Respondent was restrained from transferring, disposing of, depleting, encumbering or in any way dealing with the privately-held business.
h) The Respondent was restrained from the privately-held business. or any other business under his possession, power or control, whether directly or indirectly, and whether in his sole name, joint names with another, pending further order of this Court or agreement between the parties.
B. The Return of the Applicant’s Motion on August 21, 2018
8The August 14, 2018 Order was specifically stated to be subject to review on August 21, 2018. By that date, the Respondent had retained counsel, who requested and was denied an adjournment of the August 21, 2018 return date to allow for greater opportunity to file responding materials. The Respondent delivered his responding affidavit at the return of the August 21, 2018 motion, prompting a request by the Applicant for an adjournment to allow for the filing of reply materials. Paisley J. granted this adjournment, to August 28, 2018, continuing the terms of the August 14, 2018 Order.
C. The Return of the Applicant’s Motion on August 28, 2018
9On August 28, 2018, the Applicant’s motion was returned before Chiappetta J. The Respondent filed, in advance of the hearing, affidavits of the Respondent’s sister, the business’ accountant and, for good measure, a further affidavit of the Respondent. The Applicant again sought an adjournment to deliver reply materials. Chiappetta J. adjourned the motion to September 11, 2018, set a timetable for the delivery of reply materials, and varied the August 14, 2018 Order as follows (the “August 28, 2018 Order”):
a) The Order that the Respondent vacate the Condominium was rescinded;
b) The Respondent was granted a supervised access visit with the children;
c) The Order that the Respondent could not withdraw any funds was modified to allow him a one-time withdrawal from his RRSPs of $10,000, before taxes. Also, the Respondent was ordered to pay 50% of the value of the collapsed RRSP, after taxes, to the Applicant, on a without prejudice basis.
D. The Issuance of the Application on September 5, 2018
10The Wife filed her Application on September 5, 2018. At that time, the Wife also delivered a third affidavit replying to the two affidavits now filed by the Husband. The Wife also filed five further affidavits, all sworn on September 5, 2018, by: the Applicant’s sister; a former employee of the business; a former business associate; and two affidavits by two of the Applicant’s friends.
E. The Return of the Applicant’s Motion on September 11, 2018
11I heard this motion when it resumed on September 11, 2018. The Applicant sought an order continuing the August 14, 2018 Order, presumably as modified by the August 28, 2018 Order, with the added requirement that an order be rendered for the sale of the Condominium. The Respondent sought an order varying the August 14, 2018 Order as follows:
a) Modifying the Applicant’s custody of the children so that the Applicant and the Respondent would, on an interim basis, share joint custody of the children;
b) Allowing contact between the Respondent and the children to establish regular visits by the children with their father;
c) Limiting the restraining order to direct or indirect communications with the Applicant only, but not the children, and not the children’s schools;
d) Removing the prohibitions against withdrawal or use of the parties’ funds.
12As a preliminary issue to be determined, the Respondent stated that the five further affidavits filed by the Applicant were not reply evidence, in that they did not “reply to any new matters raised by the evidence served by the Respondent”, as is required by Family Law Rule 14(20)(3). The Respondent contended that these five further affidavits constituted new and further evidence filed by the Applicant. The Respondent submitted that admitting them would permit the Applicant to “split her case”: meaning that the Applicant would be permitted to file evidence in support of her motion both before and after the Respondent’s filing of evidence.
13After hearing extensive submissions by both parties, I ruled that the Applicant’s five further affidavits contained evidence that went beyond the reply evidence allowed by Family Law Rule 14(20)(3). However, as this further affidavit evidence was relevant to the issues raised by the Applicant’s motion, including the parenting issue, I admitted the affidavits, adopting the statement by Himel J. in V.A.W. v. R.L. (2004), 7 R.F.L. (6th) 444 (Ont. S.C.J.) at para. 21: “Where the interests of children are involved, the court should take an expansive rather than a technical approach to the admission of evidence so long as the evidence is relevant, necessary and probative to the matters in issue.”
14But the objective of ensuring a full and expansive record could not be at the expense of procedural fairness to the Respondent. As such, I granted leave to the Respondent to deliver, by September 19, 2018, further affidavit evidence to respond to the new evidence contained in the five affidavits, in accordance with Family Law Rule 14(20)(2). I granted the Applicant leave to deliver any further reply evidence by affidavit by September 26, 2018, in accordance with Family Law Rule 14(20)(3). In addition, I ordered as follows (the “September 11, 2018 Order”):
a) On the consent of the parties, a request for the involvement of the Children’s Lawyer;
b) Further supervised access visits by the children with their father on every Sunday, on the same terms set out in the August 28, 2018 Order;
c) That the parties attend at a case conference to be held prior to substantive argument on the motion, which was adjourned to October 4, 2018.
F. The Further Affidavit Evidence
15In accordance with the September 11, 2018 Order, the Respondent filed four responding affidavits, all sworn on September 18, 2018 and filed on September 19, 2018: the third affidavit of the Respondent; an affidavit of a physician; an affidavit of a friend; and an affidavit of his mother. In reply, on September 26, 2018, the Applicant filed the following reply affidavits, all sworn either on September 25 or 26, 2018: the fourth affidavit of the Applicant; a further affidavit of the Applicant’s sister; and a further affidavit of a former business associate.
III. The Case Conference of October 3, 2018
16The case conference was held on October 3, 2018, the day before the return of the motion. The parties settled the motion. The case conference judge, Monahan J., issued an endorsement for an Order in accordance with the following terms agreed upon by the parties (the “October 3, 2018 Order”):
a) Pending the completion and receipt of results from hair follicle testing, the Respondent shall have supervised access with the children up to twice a week, to be scheduled collaboratively. Upon receiving a negative result in hair follicle testing, the parties shall review the access program through counsel. The Respondent shall not contact the children except through the access visits;
b) The Restraining Order issued by Paisley J. on August 14, 2018 is terminated, effective October 3, 2018, with respect to the children, only, and shall continue to apply to the Applicant, to the matrimonial home and to the children’s schools save and except for teacher meetings, interviews, special occasions, presentations and events;
c) The terms of the August 14, 2018 Order restraining the Respondent from accessing funds and sources of funds are terminated in that the Respondent can release the remainder of his RRSPs and shall be permitted to deal with his private business enterprise. Upon receipt of the funds from his RRSPs, the Respondent shall:
(i) pay the Applicant $750 each month as interim child support;
(ii) pay the expenses associated with the condominium;
d) Both parties are restrained from depleting any joint accounts and neither party shall encumber the matrimonial home.
17While the October 3, 2018 Order does not order the Respondent to undergo hair follicle testing, it makes the manner of his access with the children dependent on the results of this testing. It also makes the Respondent fully liable for the cost of this testing should the result be positive, and causes the parties to share in this expense in the case of a negative result.
18In addition, Monahan J. ordered as follows:
The hearing of the October 4, 2018 motion will not be necessary; however, the parties will make written costs submissions to Sanfilippo J. by October 26, 2018, in accordance with paragraph 12 of the Minutes of Settlement.
19The parties delivered their cost submissions within the time stipulated by the October 3, 2018 Order.
IV. Analysis
20The costs of the Applicant’s motion of August 14, 2018 were reserved to August 21, 2018, and then to August 28, 2018 and September 11, 2018 and were scheduled to be determined on October 4, 2018. I will determine the cost consequences resulting from this motion.
A. The Parties’ Positions
21Both parties claim that they are entitled to costs. Each party claims costs on a full recovery basis, on the submission that the other acted in bad faith.
22The Applicant seeks $46,320.66 in costs, on a full recovery basis, consisting of the following:
a) $43,733.26 in fees and HST on a full recovery basis (which would be $32,802.64 in fees and HST on a partial recovery basis);
b) $2,587.40 in disbursements and HST.
23The Respondent seeks $85,603.33 in costs consisting of the following:
a) Full indemnity costs of $26,333.90, consisting of $22,749.25 for fees and HST, and disbursements and HST of $3,584.65, for the time period prior to the delivery of the Respondent’s offer to settle on August 24, 2018;
b) Full indemnity costs of $59,269.43, consisting of $50,581.00 for fees, plus HST, plus disbursements and HST of $2,225.90, for the time period after the delivery of the Respondent’s offer to settle.
24The parties thereby jointly submit that in the 50 day span (35 business days) from when the Applicant brought her emergency motion on August 14, 2018, to the case conference of October 3, 2018, they together incurred $131,923.99 in costs on a motion for interim relief.
B. Framework in the Family Law Rules
25Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides the Court with discretion in the determination of both entitlement to costs and quantification of costs. The exercise of discretion in family law cases is guided by the Family Law Rules, O. Reg. 114/99.
26The parties’ submissions presume that either the Applicant or the Respondent is entitled to costs of the interim motion. However, the court’s discretion in awarding costs is broad, and the court may find that neither party is entitled to costs where each is proceeding in a way that the court should not encourage: Roach v. Roach, [2001] O.J. No. 523 (S.C.J.) at para 12; Sears v. Sears (2005), 24 R.F.L. (6th) 402 (Ont. Div. Ct.).
27Family Law Rule 24(1) states that a successful party on a motion is presumptively entitled to costs. However, this presumption is displaced where the successful party has behaved unreasonably (Family Law Rule 24(4)), where there is divided success (Family Law Rule 24(6)) or where the unsuccessful party delivered an offer to settle the motion that was as favourable or more favourable than the result achieved by the successful party on the motion (Family Law Rule 18(14)). The first step in the analysis is, then, to determine whether one party was more successful than the other.
C. Who Was the Successful Party?
28The Applicant’s motion was not determined on its merits: it was settled at case conference. As a result, the October 3, 2018 Order was rendered on consent. In Cogan v. Groulx, [2004] O.J. No. 5541 (S.C.J.), Matlow J. declined to determine costs following a settlement based on his finding that he lacked evidence on which to make a decision: see also Barber v. MaGee, 2013 ONCJ 552 at para. 23. However, Johanns v. Fulford, 2011 ONSC 5268, 15 R.F.L. (7th) 184 at para. 8 and Ball v. Ball, 2014 ONSC 5754, 52 R.F.L. (7th) 244 at para. 11 both held that the court can determine costs on a settled motion where there is a sufficient record with supporting documentation: see also Scipione v. Del Sordo, 2015 ONSC 5982, 68 R.F.L. (7th) 66.
29Here, neither party disclaims the ability of the court to determine costs of the motion, notwithstanding that it was not adjudicated on its merits. Indeed, both parties urge the court to determine the issue of costs in their favour. A process for determining costs was set out in the October 3, 2018 Order. Further, when this motion was before me on September 11, 2018, I had jurisdiction over the issue of costs reserved from the hearings of August 14, 2018, August 21, 2018 and August 28, 2018. In the circumstances, I am in a position to determine the cost issues raised by this motion.
30Determining success on this motion is challenging because it involves a moving target. The October 3, 2018 Order has fewer entitlements for the Applicant than the August 14, 2018 Order, which suggests that the Respondent was successful in scaling back the terms that the Applicant obtained without notice. On the other hand, the Applicant maintained certain entitlements that the Respondent sought to extinguish, which suggests that the Applicant was more successful than the Respondent.
31I have considered all of the Orders together, and have concluded as follows:
a) Custody: The August 14, 2018 Order granted “custody and primary care” of the children to the Applicant. It also ordered that the Respondent would have “no access to the children.” The Respondent sought an Order for joint custody and for unsupervised overnight access. The October 3, 2018 Order awarded him supervised access visits with the children up to twice a week.
b) The Restraining Order: The August 14, 2018 Restraining Order prohibited any contact between the Respondent and either the Applicant or the children. On August 24, 2018, the Respondent offered to settle this term by prohibiting the Respondent’s contact with the Applicant and the matrimonial home, but not with the children or their schools. The October 3, 2018 Order terminated the restraining order in relation to the children, but maintained the restraining order in relation to the Applicant, the matrimonial home and the children’s schools, except for certain events.
c) The Condominium: The August 14, 2018 Order required that the Respondent vacate the Condominium. This was set aside by the August 28, 2018 Order. The October 3, 2018 Order imposes on the Respondent the requirement that he pay the expenses associated with continued occupation of the Condominium.
d) The Use of Funds: The August 14, 2018 Order froze the Respondent’s access to family funds and assets. The October 3, 2018 Order allows the Respondent to access funds, but imposes on him the obligation to pay interim child support and condominium expenses from these funds.
e) Access to the Business: The August 14, 2018 Order froze the Respondent’s access to his business. The October 3, 2018 Order allows the Respondent to access his business, but requires that neither party further encumber the matrimonial home.
32This analysis shows that in the progression of this motion from the first Order of August 14, 2018 to the last Order of October 3, 2018, each party had partial success on each of the issues analysed above. If this were a case of equally divided success, I would either apportion costs between the parties, in accordance with Family Law Rule 24(6), or order that no party is entitled to costs, in accordance with the principle stated in Lowndes v. Summit Ford Sales Ltd. (2006), 48 C.C.E.L. (3d) 194 (Ont. C.A.), “where success on an appeal is substantially divided … an award of costs of the appeal will not be made.” However, it is not.
33In evaluating success in this multi-phase motion, the Applicant was more successful than the Respondent. The Applicant was successful in achieving the following:
a) A parenting arrangement wherein the children are in the primary care of the Applicant with the Respondent having access visits;
b) Stability of residence for the children;
c) Interim child support and arrangements for the management of the condominium;
d) An Order restraining the Respondent from contact with the Applicant, the matrimonial home and the children’s schools, except for certain events, to reduce any potential for conflict.
34The question then becomes whether the Applicant’s success was “as favourable or more favourable” than the terms offered by the Respondent in his Offer to Settle of August 24, 2018, or the Applicant’s Offer to Settle of October 3, 2018.
35In my assessment, neither the Applicant nor the Respondent delivered Offers to Settle that encompassed all of the terms set out in the October 3, 2018 Order. The Respondent offered terms that would have settled the refinement of the restraining order and the lifting of the restraints on the family’s financial resources. The Applicant proposed terms that would allow for supervised visits by the Respondent with the children, but without testing, and would make the Respondent responsible for the condominium expenses. Both Offers to Settle presumed that the children would be in the primary care of the Applicant, who would have exclusive use of the matrimonial home.
36All matters considered, I have determined that neither the Respondent’s August 24, 2018 Offer to Settle nor the Applicant’s October 3, 2018 Offer to Settle satisfies the requirements of Family Law Rule 18(14).
37The Applicant failed to entirely sustain the August 14, 2018 Order, which the Respondent was successful in modifying. However, the substantive terms that survived this arduous multi-stage motion process were largely those sought and obtained by the Applicant to stabilize the family’s situation, in the best interests of the children. This is a case of partial success, wherein the Applicant was more successful than the Respondent and has thereby established an entitlement to costs.
D. Should Either Party’s Conduct Be Discouraged through the Cost Award?
38Family Law Rule 24(4) states as follows:
Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
39This consideration is replicated in Family Law Rule 24(12)(a)(i), which states that the reasonableness and proportionality of each party’s behavior is relevant to setting the amount of costs. These rules authorize the use of cost orders to express the court’s disapproval of a litigant’s conduct: Mullin v. Sherlock, 2018 ONSC 6933 at para. 14; Below v. Sheene, 2018 ONSC 6552 at para. 24.
40In Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, the Court of Appeal has confirmed that the law of costs in family law cases is designed to foster three important costs principles: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants: see also, Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.). In Mattina v. Mattina, 2018 ONCA 867 at para. 10, the Court of Appeal stated that Family Law Rule 2(2) adds a fourth factor: to ensure that cases are dealt with justly.
41Each party argues that the other has acted unreasonably. Each party submits that my cost award ought to be designed to discourage or sanction the inappropriate behaviour of the other. I will address these submissions in turn.
Does the Respondent’s Conduct Give Rise to an Increased Cost Recovery by the Applicant?
42The Applicant submitted that the Respondent acted in bad faith by filing affidavit evidence that necessitated response and, in the final analysis, was not consistent with the Answer filed and the terms of consent Order agreed upon. The Applicant contends that by virtue of the Respondent taking positions that were inconsistent with his own evidence and the terms that he agreed upon, I ought to award costs on a full recovery basis. I decline to do so.
43No determination has been made yet concerning the veracity of the Respondent’s evidence or, indeed, the evidence proffered by the Applicant. There is no doubt that the evidence tendered in the multiple affidavits is far-reaching, but it falls short of bad faith as that term has been developed in the case law. In Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.) at para. 4, Campbell J. stated that bad faith involves “…the conscious doing of a wrong because of a dishonest purpose or moral obliquity.” In S.(C.) v. S.(M.), [2007] O.J. No. 2164 (S.C.J.) at paras. 16-18, Perkins J. commented that “in order to come within the meaning of bad faith in subrule 24(8), behavior 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 behavior, to conceal information relevant to the issues or to deceive the other party or the court.” These elements are not present here.
Does the Applicant’s Conduct Give Rise to Decreased Cost Recovery?
44The Respondent submits that the Applicant ought to be deprived of her costs in order to sanction her for the manner by which she brought her motion.
45On the single affidavit presented to the court on August 14, 2018, the Applicant obtained an interim Order that was reviewable in a week. That first step set in motion a cascading series of court attendances and an ever-expanding record. My task is to assess the effect that this manner of proceeding should have on determining costs.
46I agree with the statement by Wildman J. in Rosen v. Rosen, [2005] O.T.C. 31 (S.C.J.) that beginning a case with a motion rather than a case conference is discouraged. The practice is inefficient and contrary to the primary objective of the Family Law Rules, which is to “enable the court to deal with cases justly” by “ensuring that the procedure is fair to all parties” and “saving expense and time”: Family Law Rules 2(2), 2(3). The perils foreseen by Wildman J. in para. 2 of Rosen were realized in this case:
Generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage the parties to sit down in a case conference prior to a motion to see if some or all of the issues can be resolved, either directly or with input from the presiding judge. There is a deliberate attempt to try to avoid the damage that flows from the “nasty affidavit war” that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.
47Family Law Rule 14(4) provides that no motion may be brought before a case conference. Motions are expensive and time consuming and the Family Law Rules clearly provide that they may not be brought until the basis for the motion is first discussed at a case conference.
48Family Law Rule 14(4.2) states that, notwithstanding Family Law Rule 14(4), a motion may be brought before a case conference where there is a situation of urgency or hardship. The single affidavit submitted on August 14, 2018 allowed for the issuance of a temporary, interim order at that time. But that does not preclude my analysis now, with the benefit of much more evidence, of whether I ought to decrease cost recovery by the Applicant to discourage the manner by which she proceeded on this motion. This is particularly so where costs were reserved on the initial ex parte hearing for the purpose of their determination once the interim relief rendered that day was reviewed on the full record available on the final return of the motion.
49The Applicant has filed four of her own affidavits, starting with her first affidavit on August 14, 2018. The Respondent has filed three of his own affidavits. The parties have filed twelve affidavits by other witnesses. In my review of these nineteen affidavits, which constitute a veritable “nasty affidavit war”, I see no reasonable basis for the Applicant proceeding on August 14, 2018 without notice to the Respondent. On the full scope of the evidence now before me that was not before the Court on August 14, 2018, I see no reason why the Applicant needed to proceed with a motion prior to a case conference.
50The Applicant failed to follow the practice set out by the Family Law Rules, and explained by Wildman J. in Rosen. The Applicant ought to have: (i) inquired of the earliest date for a case conference; (ii) scheduled a case conference; (iii) provided notice to the Respondent of the relief sought; and (iv) addressed the relief required at the case conference, prior to bringing a motion. It is vitally important to follow this practice in relation to an interim, temporary order that is intended to stabilize the family’s situation, recognizing that the final determination will occur later.
51The parties were able to come to agreement at a case conference. Indeed, once both counsel were engaged, offers to settle were exchanged as early as August 24, 2018 that laid the foundation for the terms that were implemented on October 3, 2018. The four court appearances in 50 days in this case could reasonably have been handled in one had proper procedure been followed. I cannot determine with certainty that an initial case conference would have avoided all, or even the bulk of the costs incurred, but I can find with certainty that costs were unnecessarily incurred by the multiple hearings and multiple tranches of affidavits, responding affidavits and reply affidavits that resulted from the manner by which this motion was launched.
52The practice of proceeding with a motion, without notice, prior to the issuance of an Application and prior to a case conference must be reserved to cases that are truly urgent and present a real risk of imminent hardship. On the record before me, I can see that this was not one of them. The record now available does not support the urgency that the Applicant contended was present on the evidence contained in her affidavit of August 13, 2018. My award of costs must discourage the manner by which the motion was advanced in this case.
E. Quantification of Costs
53Family Law Rule 24(12) sets out the factors that a court shall consider in setting the amount of costs. These include the importance or complexity of the issues, the lawyer’s rates, the time spent and the expenses paid or payable. As addressed already, the court shall also consider the reasonableness and proportionality of each party’s behavior.
54I will consider the Applicant’s costs on a partial recovery basis. These total $32,802.64 for fees and HST and $2,587.40 for disbursements and HST for an all-inclusive amount of $35,390.04. The hourly rates used by the Applicant are reasonable. I agree with the finding by Nordheimer J., as he then was, in Basdeo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), at para. 7, that it is not “the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been ‘over-lawyered’.” The time docketed by the Applicant’s counsel was not “clearly excessive” for the multiple tasks undertaken.
55I will reduce the amount of the Applicant’s partial recovery fees to reflect the partial success and to discourage motions from being brought without notice prior to case conferences unless the circumstances are shown to be truly urgent and present a real risk of imminent hardship that can be prevented by early court intervention. The motion practice advanced by the Applicant not only caused inefficiencies for the Applicant but caused the Respondent to incur significant unnecessary costs. This is important to both parties as costs incurred by the Respondent will reduce joint family assets that might otherwise be available to the parties and their children.
56The task is to determine a value that is fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). This is beyond the mechanical, arithmetic computation of the legal fees incurred, as was emphasized by the Court of Appeal in Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para. 4: “[i]n our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
57As a final element of my cost assessment, I must ensure that the cost award is proportional and reasonable. In Beaver v. Hill, 2018 ONCA 840 at para. 12, Nordheimer J.A. stated that “proportionality and reasonableness are touchstone considerations to be applied in fixing the amount of costs.” This statement was made in direct reference to Family Law Rule 24(12)(a), which highlights the principles of proportionality and reasonableness as overarching considerations in cost assessment in family law cases.
58To achieve a cost assessment that is fair, reasonable, just and proportionate, that reflects the partial success achieved and discourages the manner by which the motion practice was advanced by the Applicant, I reduce the Applicant’s partial recovery cost demand of $35,390.04, all inclusive, by one-half. I award the Applicant costs in the amount of $17,695.02, all-inclusive, payable by the Respondent.
59As this Application is at an early stage, and as the parties’ financial resources are predominantly in real estate that has not yet been liquidated, these costs are not payable forthwith. Rather, these costs shall be paid by the Respondent to the Applicant upon adjudication of the economic issues at trial, or as part of any settlement of the economic issues raised by this Application.
V. Disposition
60Having considered all applicable principles, including those set out in Family Law Rules 18 and 24, and in the exercise of my discretion, including as set out in section 131 of the Courts of Justice Act, I have determined that it is fair, reasonable, just and proportionate to award the Applicant, Farah Soraya Shah, costs in the amount of $17,695.02, all-inclusive, payable by the Respondent, Edward Irvine. The costs shall be paid by the Respondent to the Applicant upon adjudication of the economic issues at trial, or as part of any settlement of the economic issues raised by this Application.
Sanfilippo J.
Date: December 7, 2018
