Court File and Parties

COURT FILE NO.: FS-19-7716 DATE: 2019-10-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SANDRA VO, Applicant

• and -

PETER KHIN VOONG et al., Respondents

BEFORE: F.L. Myers J.

COUNSEL: Sarah Young and Faria Marlatt, for the applicant Guy Matteazzi, for the respondent Peter Voong Scott Rosen, for Helen Voong, Michael Voong, and related corporations

READ: October 8, 2019

COSTS endorsement

[1] This endorsement deals with the costs of the motions heard August 26, 2019 in this proceeding. In my endorsement resolving the motions, reported at 2019 ONSC 5061, Ms. Vo was successful on virtually all issues. Those issues that were not decided were deferred rather than being dismissed.

[2] I have reviewed Ms. Vo’s offers to settle and agree with the table in counsel’s submissions indicating that Ms. Vo met or bettered her offer in relation to the issues of: access, disclosure by Mr. Voong, disclosure by Ms. Vo, income to be imputed to Mr. Voong, retroactive support, schooling for the children, interim disbursements, and preservation orders.

[3] Mr. Voong made no offers to settle.

[4] Had Mr. Voong accepted Ms. Vo’s last offer, he would be imputed with income of $350,000 instead of $400,000; he would not be facing retroactive support as of December, 2017; he would have to pay interim disbursements of $50,000 instead of $100,000; and he would have made less disclosure and obtained more from Ms. Vo than I ordered. Presumably, had he engaged in negotiation with Ms. Vo, more concessions would have been available.

[5] Ms. Vo did not beat her offer in relation to imputed income for herself. So, had Mr. Voong accepted Ms. Vo’s offer, he would have obtained only an imputed income for Ms. Vo of $35,000 rather than the $40,000 that I ordered. But that uptick has nowhere near enough economic effect to offset the other gains that he would have obtained had he approached the matter reasonably.

[6] I agree with Mr. Voong’s counsel however, that Ms. Vo’s final offer was made too close to the time to the motion to have a very significant effect. Ms. Young advises that her costs after service of the offer amount to $10,780.20 all-in or about one-quarter of the $39,000 that she seeks.

[7] The parties agree that the purposes of costs awards in family proceedings are: to partially indemnify the successful party; to encourage settlement; and to sanction inappropriate behaviour. Like all orders in family proceedings, they are intended to promote the just and efficient resolution of the case. They must also be reasonable as assessed with access to justice considerations in mind.

[8] Mr. Voong has moved assets to his siblings and others and steadfastly resists efforts to obtain truthful and complete disclosure of his finances. He has put forward his siblings to claim ownership of assets that appear to likely belong to him in equity if not in law. He put forward his corporate lawyer to claim privilege over corporate documents over which a lawyer has no privilege. It appears that Mr. Voong may have engaged one or more lawyers in efforts to move his assets. Hopefully no lawyer is ever shown to have knowingly engaged in inappropriate transactions. I am very suspicious though, as to how obviously relevant and possibly adverse documents, like the Schedule 50 to Mr. Voong’s 2016 tax return, came to be selectively excluded from the documents that Mr. Voong produced.

[9] If Mr. Voong does not yet understand from my prior endorsement, his assets and income will be revealed. It will take longer, be more expensive, and much more stressful for everyone unless Mr. Voong changes his approach.

[10] This motion calls out for the use of a costs award to try to enhance settlement opportunities and to express disapproval of unreasonable behaviour. For example, and in addition to the issues noted in my main endorsement, Mr. Voong offered to hire a business valuator before the Case Conference judge. He re-thought the offer immediately after the Case Conference. He then re-asserted it for this motion. It should have been done long ago. Both the continued delay in doing what is obviously necessary and required and the tactic of flip-flopping to seek to avoid judicial censure are both noteworthy.

[11] I find it significant that in his costs submissions, Mr. Voong continues to blame Ms. Vo for the outcome of the motions. He refers to the criminal charges against him and the disclosure that he has made already. While the criminal charges may motivate Mr. Voong to adopt his current approach, they have no bearing on the economic issues or his duties. As to disclosure, I made clear findings that his disclosure, while voluminous, was inadequate and, in my view, deliberately so. Mr. Voong’s plea of poverty in his costs submissions rings particularly hollow given his inadequate disclosure.

[12] In S(C) v S(M), 2007 CanLII 20279 at para. 16, Perkins J. found that bad faith, for the purposes of Rule 24(8) of the Family Law Rules, O. Reg. 114/99, can include not just intent to deceive, but intent to conceal, and intent to inflict harm. In my view, all three grounds exist here as set out in my prior endorsement. I have no hesitation in finding that Mr. Voong’s participation in these motions amounts to bad faith under the rule. As such, the rule requires that Mr. Voong be found liable to fully indemnify Ms. Vo for her costs.

[13] But, the fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act, RSO 1990 c C.43. In addition to the three goals cited above, the discretion as to costs is generally also to be exercised considering the expectations of the unsuccessful party. Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[14] I do note that the Costs Outline of Mr. Voong’s counsel shows considerably less fees incurred than those incurred by Ms. Vo’s counsel. I do not see any time claimed by Mr. Voong’s counsel preparing for the hearing. Regardless, Mr. Voong’s counsel did not have to go through the painstakingly laborious exercises of listing documents and disclosure requests individually and dealing with the comprehensive budget of Mr. Voong’s spending prepared by Ms. Vo. Ms. Young prepared and submitted very helpful charts that led the court through the complexities of the economic and disclosure issues. These aids were both time consuming to make and powerful advocacy tools. It should come as no surprise that the party who fails to fulfil his disclosure obligations incurs less legal time than the party who is required to chase the other and assemble and organize proof of the significance of what the other party has wrongly declined to disclose.

[15] In making a significant costs award for this motion, in my view, I am not impairing access to justice but supporting and enhancing it. Mr. Voong ought to be able to come to court with far less at stake. Mr. Voong will be able to do so if he heeds the primary objective of Family Law Rules and fulfills his obligations. Refusing to make a meaningful offer to settle, moving assets, and refusing to make full, early, and voluntary disclosure results in costs sanctions in addition to the relief already granted.

[16] In my view, the fees sought by Ms. Vo’s counsel are fair and reasonable in light of the foregoing. Mr. Voong is ordered to pay Ms. Vo’s costs on a full indemnity basis in the amount of $39,000 inclusive of disbursements and taxes forthwith. I have not ordered any costs against Mr. Voong’s siblings as I view them as conduits for Mr. Voong’s funds in any event.

F.L. Myers J.

Date: October 8, 2019