Clark v. Fuelling, 2019 ONSC 3340

COURT FILE NO.: FC-18-2065 DATE: 20190530

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Allen Clark, Applicant AND Kim Fuelling, Respondent

BEFORE: Aitken J.

COUNSEL: Katherine Shadbolt, for the Applicant John Summers, for the Respondent

HEARD: Written Submissions

Endorsement re Costs

Order Being Sought

1The Applicant is seeking his costs in the amount of $9,638.47 on a substantial indemnity basis, inclusive of HST and disbursements, in regard to the interim motion heard April 16, 2019.

2The Respondent is seeking an order that no costs be payable by either party.

Interim Order Granted

3The order granted on April 26, 2019 was as follows:

• The Respondent’s request for an adjournment for the purpose of filing an amended affidavit and factum was denied.
• The Applicant’s request for the Russell Street property to be sold was granted.
• The Applicant’s request for vacant possession of the Russell Street property was granted, though not on an immediate basis.
• The Applicant was ordered to pay all of the carrying costs of the property pending sale, subject to a final accounting.
• The Respondent’s request for interim spousal support was denied.

4Although the Applicant did not receive all of the relief he sought, he received the majority of it and was the successful party. In the normal course, he would be entitled to his costs (Family Law Rules, O.Reg. 114/99 as am, r. 24).

5The Respondent was unsuccessful in her claim for interim spousal support. The fact that she brought this motion increased the Applicant’s costs on the motion.

6The real question is whether the costs should be on a substantial or partial indemnity basis.

Substantial vs. Partial Indemnity Basis

7The Applicant seeks costs on a substantial indemnity basis for the following reasons:

• The Applicant acted reasonably throughout;
• The Respondent did not act reasonably on a number of fronts; and
• The Applicant made two offers to the Respondent. Although they did not qualify as offers under the Family Law Rules, r. 18(14), they were nevertheless reasonable and can be considered under r. 18(16).

8The Respondent has not acted reasonably in the conduct of this litigation to date, as I described in my Endorsement dated April 26, 2019 (Clark v. Fuelling, 2019 ONSC 2621, at paras. 6-8 and 12-14). Of real concern is that the Respondent has not complied with earlier court orders regarding disclosure made by Master Fortier.

9The Respondent changed her mind during the course of the litigation, initially agreeing to the sale of the Russell Street property and then changing her mind just before the case conference.

10The Respondent delayed in serving her responding materials on the motion. She served her affidavit on the last possible day for filing. On the eve of the motion, she then claimed that the affidavit that she had served and filed was not the correct affidavit and she sought permission to file a new affidavit. This last minute glitch added to the Applicant’s legal costs.

11The Respondent served an offer to settle – but only on the eve of the motion. By that time, the Applicant had already served two offers that were reasonable attempts at settlement – both of which the Respondent had rejected. The Respondent’s offer was not reasonable in that it did not stipulate who would pay the carrying costs of the Russell Street property until its sale. It was reasonable for the Applicant to assume that the Respondent intended him to continue paying such costs. At the same time, the Respondent’s offer required the Applicant to pay the Respondent interim spousal support. The Applicant could have been left in the position of having to pay all of the carrying costs of the property AND pay ongoing spousal support to the Respondent if he had accepted the offer.

12Despite the Respondent’s unreasonable behaviour, I am not convinced that substantial indemnity costs are warranted at this time.

Factors to Consider in Setting Costs Amounts

13Under the Family Law Rules, r. 24(12), there are a number of factors the court should consider in setting costs.

14I have already reviewed each party’s behaviour.

15Counsel for the Respondent did not comment on the time spent on this matter by the Applicant’s counsel. Nor did the Respondent’s counsel submit his own bill of costs for comparison purposes. Although 19 hours seems high for an interim family motion with minimal relief being sought, I have already highlighted some of the reasons why this motion may have taken longer than usual. The unreasonable behaviour on the part of the Respondent increased the Applicant’s legal costs.

16I have already reviewed the offers to settle made in this matter.

17The Applicant’s counsel, with 33 years’ experience, charges at $395 per hour – that is not unreasonable. She did the bulk of work on the file. Again, the Respondent’s counsel offered no comment in regard to the rates charged.

18The disbursements charged were all within normal expectations.

19The Respondent urges that I take into account her impecuniosity when deciding what, if any, costs award to make. She argues that, since she is a student and has no income at the present time, she should not be ordered to pay any costs to the Applicant. That is not the way it works. She decided to engage in the litigation, rather than seek an amicable resolution to the outstanding issues between herself and the Applicant. Not only did she put up road blocks to the sale of the Russell Street property, but also, she initiated the cross-motion seeking interim spousal support in circumstances where such a claim is marginal at best. As well, in entering the fray, she did not take care to provide full, up-to-date, financial disclosure as family law litigants are required to do and, in fact, she ignored court orders to make such disclosure. There is no reason why she should get a free ticket in these circumstances.

Disposition

20The Respondent shall pay the Applicant his costs fixed in the amount of $6,000, inclusive of HST and disbursements.

Aitken J.