COURT FILE NO.: FS-15-84098-00
DATE: 2019 10 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Grzegorz Bembenek, Applicant
AND:
Renee Bembenek, Respondent
BEFORE: Ricchetti J.
COUNSEL: Steven Benmor, for the Applicant Malerie Rose, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
Background
[1] Reasons for Judgment were issued on July 2, 2019.
[2] After completion of the trial, and prior to the release of the Reasons for Judgment, both parties submitted Bills of Costs for the proceeding. The Father's Bill of Costs was $103,581.45. The Mother's Bill of Costs was $128,006.83.
[3] Written costs submissions were received from both counsel.
[4] Subsequently, the Mother saw fit to write an email to this court with further submissions on October 1, 2019. There was no provision for doing so in the Reasons for Judgment. It is not clear whether Ms. Rose, the Mother's counsel at trial, continues to act for the Mother. In any event, the Mother's further submissions are not helpful regarding the issue of costs. At the Mother’s request, a copy of this endorsement is being sent to the Mother.
The Position of the Parties
[5] The Father’s counsel seeks full indemnity costs of $103,581.45. The Father submits he was substantially successful and relies heavily on an April 29, 2019 Offer ("Offer") for full indemnity costs.
[6] The Mother’s counsel submits that no order be made as to costs. The Mother submits that the parties had mixed success at trial such that no order as to costs is appropriate. Alternatively, the Mother submits that the Father acted in bath faith disentitling him to costs. The Mother also takes issue with the claim for full indemnity costs. The Mother submits she is not able to pay costs as she is now on maternity leave.
Analysis
[7] It is correct that the Father's claim regarding custody, access and child support were decided substantially in his favour and as set out in his Offer. However, the same cannot be said about the remaining issues; supervised access in his Application, the children’s relocation to Toronto, Spousal Support and equalization/post separation issues. On these issues, the Mother was substantially successful.
[8] The Father's response is that the Offer had a severability provision, permitting the Mother to accept the child related issues and proceed to trial on issues she did not accept. I agree this is a factor to be considered whether to grant the Father costs and the quantum of such costs. However, on a careful review of the Offer, the Father's Offer did not deal with the Father's residence, a significant issue at trial. In the end, the Father’s parenting time was conditional that the Father move to Mississauga for the parenting time ordered or the Mother could return to court. Further the Father's Offer provided that if accepted, then and only then, would the Father waive the remaining balance of the equalization payment/post separation issues he had claimed - most of which issues were determined against the Father. In these circumstances, I am not prepared to put much weight in the Offer as a factor in determining entitlement or quantum of costs, despite the severability provision.
[9] The conduct of both parties leading up to and at the early stages of this litigation leaves something to be desired (and contributed to the conduct of this litigation) - the Mother's position to deprive Father of seeing his children and the Father's position that the Mother have supervised access because of some alleged alcohol problem. Both parties point to the other party's unreasonable behaviour in this litigation, but in my view, the same can be said of either party.
[10] At trial the credibility issues and positions taken of both parties tended to lengthen and unnecessarily make this proceeding more complicated and expensive.
[11] As stated in the Reasons for Judgment, by the time of trial there was not a significant difference on parenting time sought by the respective parties. Custody, the Father’s residence and the equalization/post separation issues took the largest portion of time at trial and submissions. These issues were important to both parties and a great deal of evidence and time was spent on these issues.
[12] The Father was successful on custody. The Mother's position lacked any legitimate or legal basis to deny the Father participation in decisions regarding the Children.
[13] The Father eventually conceded at trial that he would move to Mississauga and not disrupt the Children’s schooling.
[14] On the issue of access, there was only a minimal difference between the positions taken by the parties at trial.
[15] The only issue regarding child support was whether the Mother was to receive child support or there would be set-off child support. Income was not an issue. As a result, the decision on this issue came down to the parenting time and the application of the Child Support Guidelines.
[16] The Mother was substantially successful on the financial issues. There were significant problems with the Father's position and evidence at trial, which demonstrated an effort on his part to avoid a fair equalization of family property. I say this because of:
a) The Father's changing and unfounded financial claims such as his alleged unsubstantiated loans to relatives, the alleged gift from the Mother's parents and the rental loss on the income property or the transfer of the vehicles;
b) The Father's lack of disclosure as to what he did with his share of the net proceeds of sale of the matrimonial home which was relevant to his then current residence and ability to rent/buy a home in Mississauga despite the Father's long-standing position to this court over several years that he was moving to Mississauga but he never did;
c) The Father's failure to comply with the court order that he contribute 1/2 of the mortgage, insurance and property taxes on the income property; and
d) The Father's denial that the Mother borrowed the deposit when documentary and oral evidence was clear that she had done so and which documentation had been signed by the Father. Importantly, even after the document was presented at trial the Father’s evidence was inconsistent and he continued not to admit that the monies had been borrowed by the Mother;
Conclusion
[17] After considering the relative success of the parties on the two primary contentious issues at trial, namely custody and financial issues, the positions taken at trial, their evidence and the Offers in the submissions, I am not persuaded that costs should be awarded to either party.
[18] There will be no costs awarded.
Ricchetti, J.
Date: October 17, 2019
COURT FILE NO.: FS-15-84098-00
DATE: 2019 10 16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Grzegorz Bembenek, Applicant
AND:
Renee Bembenek, Respondent
COUNSEL: Steven Benmor, for the Applicant Malerie Rose, for the Respondent
COSTS ENDORSEMENT
Ricchetti J.
Released: October 17, 2019