COURT FILE NO.: FC-15-1602-1 DATE: 2019/01/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shannon Kendra Mulloy, Applicant -and- Allan Paul Mulloy, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant, in person Respondent, in person

HEARD: In Writing

Endorsement

Overview

[1] This is my decision on costs of the disclosure motions heard on August 30, 2018.

Positions of the Parties

[2] The Applicant seeks her costs on a full recovery basis in the amount of $3,675.18. These costs are made up of the following:

a) $2,963.71, inclusive of HST, for legal fees incurred to prepare her motion for disclosure; and b) $711.47 for work the Applicant missed due to her disclosure motion, calculated at her hourly rate of $29.70 for 25.5 hours of missed work.

[3] The Applicant does not expressly state why she believes she is entitled to full recovery costs. Presumably, she takes the position that she was the successful party on the motion.

[4] The Respondent submits that no costs should be awarded on the motion, given that he also brought a cross-motion for required disclosure from the Applicant (with respect to section 7 expenses), and that the Applicant was largely unsuccessful in seeking vast amounts of further disclosure from him.

Legal Principles

[5] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 recently confirmed that the modern cost rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly.

[6] Rule 24(12) of the Family Law Rules, O. Reg. 114/99 sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.

[7] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs: M.(C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40. An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.

[8] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:

“(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and

(b) any other relevant matter.”

[9] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).

Analysis and Disposition

[10] Neither party appears to have made a formal offer to settle the disclosure motions. No offers to settle were provided to me.

[11] The conduct of both parties’ warrants criticism and fails to have been reasonable on many fronts. On the Respondent’s side, he should have provided more fulsome disclosure earlier. On the Applicant’s side, she should have provided her own disclosure with respect to section 7 expenses earlier. The Applicant should have been more constructive in her requests for disclosure by identifying, with clarity, exactly what information she was looking for and limiting her requests to what was relevant and proportional to the issues in dispute. The Applicant also filed material with the court that contained a number of improper references to what was said at the settlement conference, and took steps (bringing a procedural motion on an urgent basis because she failed to arrange an earlier motion date) that wasted money and time of both parties.

[12] I find that the parties had divided success on the motions. My decision on the motions sets out failings by both parties’ with respect to their disclosure obligations. The orders made include a number of orders requiring both parties to provide further disclosure. To the extent that the Respondent was ordered to provide specific information in response to the expansive disclosure sought by the Applicant, this was largely based on his consent and was quickly identified once the court was able to focus the parties on what was relevant to the issues in dispute, and clarify what further information was needed.

[13] Both parties are self-represented in this matter and there appears to be a significant history of high conflict that has strained each party’s ability to communicate effectively with the other. This is unfortunate, as both motions could have easily been avoided if the parties had communicated better, and more constructively, with a focus on the substantive issues between them rather than using disclosure motions as a means to engage in a metaphysical sword fight.

[14] Having considered the parties’ submissions, the Applicant’s bill of costs and the Family Law Rules, O. Reg. 114/99, I order that each party bear their own costs of the disclosure motions heard on August 30, 2018.

Justice P. MacEachern Released: January 9, 2019