Court File and Parties

Oshawa Court File No.: FC-16-1748 Date: 20190211 Corrected Date: 20190312

Ontario Superior Court of Justice

Between:

Kay-Dean Mary Irhuegbae, Applicant – and – Benedict Osamudiamen Irhuegbae, Respondent

Counsel: James Olchowy, for the Applicant Joy Nwawe, for the Respondent

Heard: February 6, 2019

Ruling on Costs

Hughes J.:

[1] All issues in this case have been resolved by the parties except for costs. Oral submissions on the costs issue were concluded February 6, 2019, and respective written Bill of Costs submitted as directed by the court.

Position of the Applicant

[2] The Applicant seeks $30,299.94, including HST and disbursements, on a partial indemnity basis, and $48,809.34 on a full indemnity basis. In granting costs, the Applicant asks the court to consider the following:

i) The Applicant’s success on the issues before this court; ii) The Respondent’s tardiness in responding to the Applicant’s comprehensive Offer to Settle in a meaningful way; and iii) The unnecessary legal work and delay caused by the Respondent’s unreasonable behaviour throughout the proceeding.

Position of the Respondent

[3] The Respondent seeks $24,257.52, including HST and disbursements on a partial indemnity basis, and $33,128.02 on a full indemnity basis. The Respondent also seeks reimbursement of $28,750.33, which he claims to have paid to his prior counsel.

[4] The Respondent argues he should not have to pay costs to the Applicant for the following reasons:

i) The Applicant intentionally withheld financial disclosure relevant to these proceedings from the Respondent and this court; ii) The Applicant intentionally obstructed the Respondent’s attempts to obtain financial disclosure relevant to these proceedings from third parties; iii) To the extent the Applicant did so, she unduly delayed these proceedings and should be responsible for the Respondent’s costs; and iv) To the extent the Applicant did so, she acted in Bad Faith as defined in Rule 24 of the Family Law Rules, O. Reg. 114/99, and should be denied her costs.

The Applicant’s Response

[5] In response to the Respondent’s allegation that the Applicant withheld financial disclosure relevant to these proceedings, the Applicant countered that the Respondent had also done so, and, in particular, the Respondent had filed incomplete financial statements and had failed to produce substantiating documents.

Conclusion

[6] Ultimately, the Applicant’s comprehensive Offer to Settle substantially formed the basis of the final resolution in this matter, and in the ordinary course, the Applicant would have been entitled to costs.

[7] Rule 24(1) of the Family Law Rules provides that the successful party is presumed entitled to their costs, subject to the factors set out in rule 24(12). However, in this case the presumption is rebutted by the Applicant’s deceitful behaviour. The Applicant sought reimbursement of her child care costs from the proceeds of the sale of the matrimonial home. She failed to disclose to the Respondent that she had been granted a subsidy, and obstructed the Respondent’s attempt to obtain this information directly from the child care provider.

[8] As such, I find that both parties withheld relevant financial information during the course of this matter, no doubt based on their own self-interest. To the extent they did so, they are both guilty of causing undue delay and of acting in bad faith.

[9] The stubborn obstruction and lack of accurate disclosure served to deepen the mistrust between the parties. It is disingenuous of the Applicant’s counsel to complain about the length of time it took for the Respondent to review and respond to the Applicant’s comprehensive Offer to Settle when it is almost impossible to access the fairness of an Offer to Settle in an environment of such deep and, in this case, justified mistrust.

[10] I find that both parties acted unreasonably in this case by not providing full and frank disclosure on an ongoing basis throughout their proceeding. The Applicant was awarded costs of $15,203.00 on an interim motion for support, and that is sufficient. A party cannot be permitted to point to the non-disclosure of the other party to justify their own deceit.

Order

[11] There shall be no further costs ordered in this case.

Madam Justice J.E. Hughes Released: February 11, 2019