COURT FILE NO.: FC-13-1830
DATE: 2019/01/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Gregory Nixon
Applicant
– and –
Catharine Linda Lumsden
Respondent
H. Hunter Phillips, Counsel for the Applicant
Gregory A. Ste. Marie, Counsel for the Respondent
HEARD: In Writing
ENDORSEMENT on Costs OF A MOTION
Justice Engelking
[1] The Respondent brought a motion for an order of disclosure, for which my endorsement was released on August 16, 2018. The parties were invited to provide written submissions on costs. Subsequent to the delivery of the Applicant’s submissions on costs, Mr. Phillips became his counsel of record and although he was not involved in the motion, is reflected as such in the within style of cause.
[2] Having considered the parties’ submissions, the bills of costs and the Family Law Rules[^1], the court awards the R espondent costs in the amount of $5,000, inclusive of HST and disbursements, payable within 30 days.
Positions of the Parties
[3] The Respondent seeks costs on a partial indemnity basis in the amount of $5,900.00. She submits that she was the successful party on the motion, and is presumptively entitled to an order of costs.
[4] The Applicant submits that he has been the more successful party on the motion, or alternatively, that there was mixed success by the parties. The Applicant counsel’s bill of costs reveal a partial indemnity amount of $12,704.45. He submits that the court should apportion costs according to the divided success of the parties, or determine who is entitled to costs and set the amount, or expressly reserve the decision on costs for determination at a later stage in the case.
The Law
[5] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and ; (3) to discourage and sanction inappropriate behaviour by litigants.”[^2] The new Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award.[^3] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses.[^4] Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^5]
Analysis
[6] Neither party provided an offer to settle to the other, therefore, Rule 18(14) is not applicable, and, as a result, neither can realistically seek an order for costs on a full recovery basis.
[7] The Respondent provided a bill of costs which demonstrates that her counsel spent 19 hours on the motion and that his hourly rate is $400 per hour for a total bill at full recovery of $7,600. No outline of disbursements has been provided.
[8] The Applicant’s counsel, on the other hand, provided a bill of costs which demonstrates that he spent 34 hours on the motion at $370 per hour for a total at full recovery of $17,080.00. He, additionally, outlines disbursements of $140 and HST on fees and disbursements of $2,238.71, for a total bill of $19,459.59.
[9] The matters at issue in the motion were not particularly complex, but they were important to the parties, particularly in so far as the ordered disclosure was required for the purpose of the Respondent’s expert determining the Applicant’s income for support purposes.
[10] This motion was first issued in January of 2018 and scheduled to be heard in April of 2018. It did not proceed because the Applicant, through no fault of his own, was required to obtain new counsel. The Applicant argues that the order the Respondent was seeking at the motion was different (and new) versus what the Respondent was seeking in her original Notice of Motion. The Respondent states that the items requested in the draft order provided on the day of the motion were not new; they were simply a rewording of those listed in the Notice of Motion with items agreed to or provided (some at the very last minute prior to the hearing) or items which the Respondent had been advised by the Applicant did not exist, removed. The Respondent states that the only requests she withdrew were those which fell into the latter category. She otherwise proceeded with her motion, something she argues she ought not have been required to do, given the disclosure obligations which exist in Family Law via the Family Law Rules and the opining of the Ontario Court of Appeal.
[11] The Applicant additionally submitted that the Respondent’s requests lacked proportionality and that her motion was overreaching, given the more than 1000 pages of disclosure he had already provided. However, I found in the motion that the disclosure of certain items which the Applicant had not hitherto provided were necessary for the expert to determine if any expenses which may have been incorporated into one or more of the Applicant’s companies were, in fact, personal such that they would need to be added back into his income for support purposes.
[12] Of the outstanding items of disclosure requested (minus those agreed to/provided/withdrawn), the Respondent was successful on the capital costs schedules for Cowichan Way, on the Applicant’s obligation to have the Cowichan Way and Benson Park properties appraised in a timely manner (the Applicant having already been ordered to do so), on bank held information from the Applicant’s credit applications and on un-redacted copies of the general ledgers from Telnexia and Quintero Escapes for 2013 to 2017.
[13] The Applicant claims success on the court’s finding that he was to provide his 2017 T1 General and 2017 Notice of Assessment when they are available as opposed to by August 24, 2018, as requested by the Respondent. This was not, however, a genuine success by the Applicant as his evidence was that the requested documents were not available, and his accountant was approximately nine months behind in her work. The court simply could not order that they be produced by the requested date. Additionally, the Applicant is under an obligation, pursuant to the Rules and existing case law to provide those documents as soon as they are available in any event. If the Applicant considers this a victory, it is a hollow one.
[14] On the items which had not yet been provided or agreed upon, and which were of import to the parties, I find that the Respondent was substantially successful on the motion.
[15] I find that the lawyer’s rates and the disbursements paid are appropriate. With respect to time spent on the motion, I find that the 19 hours spent by the Respondent’s counsel is reasonable. This includes the two attendances at case management meetings, one in April and one in June, as both dealt with the issue of disclosure, the Applicant’s quest for new counsel and the timing of the motion. The Applicant counsel’s time is, in my view, excessive. However, it may be partially explained by the fact that his counsel was new to the file and would have had to familiarize himself with what he referred to as the “four banker’s boxes” which descended upon his office upon assumption of the matter in order to respond to the motion.
[16] Although the Respondent submits that the Applicant is engaged in “litigation attrition”, and that he has behaved unreasonably, the Applicant has argued that her requests for disclosure are completely disproportionate to the issues which need to be decided. I am not prepared to make a finding that either party has behaved unreasonably within the meaning of Rule 24(12) on this motion.
[17] Having regard to all of the factors listed in Rule 24 of the Family Law Rules, I find that the Respondent is entitled to an order of costs on a partial indemnity.
Order
[18] My order is as follows:
The Respondent shall pay the Applicant $5000.00, inclusive of disbursements and HST for costs of the motion;
This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.
Engelking J.
Released: January 21, 2019
COURT FILE NO.: FC-13-1830
DATE: 2019/01/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Gregory Nixon
Applicant
– and –
Catharine Linda Lumsden
Respondent
ENDORSEMENT ON COSTS OF A MOTION
Engelking J.
Released: January 21, 2019
[^1]: O. Reg. 114/99, as am. [^2]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [^3]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [^4]: Ibid. [^5]: A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.