SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-18-1624
DATE: 2019/12/10
RE: Breanna Lynn Beischer, Applicant
AND
Brent Robert Laurier Cournoyer, Respondent
BEFORE: Justice Engelking
COUNSEL: Tanya C. Davies, Counsel for the Applicant
Marta Siemiarczuk, Counsel for the Respondent
HEARD: In Writing
ENDORSEMENT On Costs
[1] Ms. Beischer brought a Motion to Change the Final Order of Justice Warren of the Supreme Court of British Columbia dated December 1, 2017, in which she seeks to set aside paragraph 64 of the Final Order, in which Ms. Beischer waives any and all entitlement to Mr. Cournoyer’s military pension and a variation of spousal support. On July 11, 2019, the court heard Mr. Cournoyer’s motion seeking an order that Ms. Beischer produce to him a complete copy of her BC counsel’s file in relation to the matrimonial litigation, and Ms. Beischer’s cross-motion for temporary spousal support. On July 15, 2019, my endorsement was released to the parties, with a provision that written submissions could be made if they were unable to agree on the issue of costs. They have done so and this is my endorsement on costs.
[2] Mr. Cournoyer was entirely successful on the motion and cross-motion. In my endorsement of July 15, 2019, I indicated that he is presumptively entitled to costs. Mr. Cournoyer seeks an order of costs of $15,917.35 inclusive of HST and disbursement payable forthwith. Ms. Beischer acknowledges that Mr. Cournoyer is entitled to an award of costs, but she disputes that the amount claimed by him is appropriate.
[3] For the reasons that follow, Ms. Beischer is ordered to pay to Mr. Cournoyer $14,000 in costs payable forthwith.
The Law
[4] 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.”[^1] The new Rule 24(12) of the Family Law 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.[^2] 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.^3 Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met.[^4]
Analysis
[5] As I have indicated above, Mr. Cournoyer was the entirely successful party on the motion and cross-motion. He is presumptively entitled to costs. Mr. Cournoyer made two offers to settle, one on his disclosure motion dated January 14, 2019, and one on Ms. Beischer’s cross-motion for interim spousal support dated July 5, 2019.
[6] In his January 14, 2019 Offer to Settle, Mr. Cournoyer offered that Ms. Beischer consent to the production of her BC counsel’s file with no cost consequences if the offer was accepted by January 31, 2019 by 5:00 pm, after which Mr. Cournoyer would seek costs on a substantial indemnity basis. Ms. Beischer did not accept his offer and Mr. Cournoyer was successful on the motion in obtaining an order that Ms. Beischer produce the file of her BC counsel. The terms of Mr. Cournoyer’s offer were as favourable to him as the outcome of the motion. He is, pursuant to Rule 18(14), entitled to costs on a full recovery basis post the January 14, 2019 offer on the issue of disclosure.
[7] In his July 5, 2019 Offer to Settle, Mr. Cournoyer offered to pay $425 per month in set off child support and $389 per month in interim spousal support to equalize the parties’ net disposable income based on his income and an imputed income to Ms. Beischer. Ms. Beischer did not accept his offer and on the motion I made no interim order varying spousal support. The terms of Mr. Cournoyer’s offer were less favourable to him than the outcome of the motion. He is, pursuant to Rule 18(14), entitled to costs on a full recovery basis post the July 5, 2019 offer on the issue of interim spousal support.
[8] On July 10, 2019, Ms. Beischer made an Offer to Settle in which she offered for Mr. Cournoyer to pay $990 per month in spousal support, which was $66 more per month than was pled in her Notice of Motion. Ms. Beischer’s Offer to Settle additionally contained terms that were not pertinent to the motion (such as Mr. Cournoyer having his pension valuated by an Ontario expert), and it contained a provision that Mr. Cournoyer pay to Ms. Beischer $7,500 in costs “provided that the offer is accepted by July 10 at 6pm”. The terms of Ms. Beischer’s offer were are more favourable to her than the outcome of the motion. In the circumstances, Ms. Beischer’s Offer to Settle was not at all reasonable.
[9] Ms. Siemiarczuk, for Mr. Cournoyer, submitted a Bill of Costs. Mr. Cournoyer seeks $9,772.71 being full recovery of his costs on the issue of disclosure, all of them having been incurred after his January 14, 2019 Offer to Settle. He also seeks $2,973.68 on a partial indemnity basis (having been incurred prior to his July 5, 2019 Offer to Settle) and $2,964.27 on a full recovery basis (having been incurred after his July 5, 2019 Offer to Settle) on the issue of interim spousal support.
[10] Ms. Siemiarczuk time spent on the file is reasonable, as is her hourly rate. It is clear from the Bill of Costs that Ms. Siemiarczuk had an associate whose hourly rate is significantly lower, Ms. Marcovitch, do much of the work on the file in order to keep the costs down for her client. Ms. Marcovitch’s hourly rate is also reasonable. However, I would reduce somewhat the number of hours she spent on the drafting of Mr. Cournoyer’s affidavits and Financial Statement from 13.7 hours to 10, as I would from 13.2 to 10 for her research and drafting of the factum.
[11] While Ms. Beischer opposes payment based on the Bill of Costs submitted by Mr. Cournoyer, she has submitted no Bill of Costs from her counsel, Ms. Davies, which would demonstrate a more reasonable number of hours spent on the file. As Chappel J. has remarked in Beaver v. Hill, 2018 ONSC 3352 at paragraph 46: “A useful benchmark for determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees and disbursements in the matter.” I have been provided with no such benchmark and can make no such comparison.
[12] The issues in this motion were important, and somewhat complex in that research was required on when and in what circumstances solicitor-client privilege could be waived, explicitly or implicitly, and on the appropriate test to be applied to an interim variation of a final spousal support order.
[13] Ms. Beischer has submitted that even where the full recovery provisions of Rule 18 of the Family Law Rules have been triggered, as they have in this case, the court must still take into consideration the financial condition and ability of the parties to pay. She relies on Chomos v. Hamilton, 2016 6232 (ONSC) where Pazaratz J. states at paragraph 57 that the court retains a residual discretion to make a cost award that is proportional, fair and reasonable in all the circumstances.
[14] However, and most significantly, the circumstances of this case are that the claim to set aside paragraph 64 of the parties’ Final Order from British Columbia is Ms. Beischer’s. That she did not appear to appreciate that her need to prove something faulty from the BC negotiations entailed reviewing her interactions with her then counsel was most distressing. It was, in fact, somewhat incomprehensible that she was, under these circumstances, arguing against the production of Ms. Schon’s file.
[15] It was equally distressing that Ms. Beischer was suggesting that BC counsel for Mr. Cournoyer knowingly and purposefully “materially mislead” her or her counsel, something for which I found there was no evidence to support before me.
[16] In addition, Ms. Beischer included in her Notice of Cross-Motion a number of issues which she abandoned essentially in the middle of her submissions, with no prior notice to Mr. Cournoyer. These included retroactive child and spousal support adjustments. Pursuant to Rules 12(3) and 14(16) of the Family Law Rules[^5], Mr. Cournoyer seeks his costs for having to respond to these claims, which costs are captured in the amount claimed.
[17] These are, I suspect, exactly the types of “inappropriate behaviour by litigants” that the Ontario Court of Appeal foresees discouraging in Mattina with a costs award.
Order
[18] There shall be an order that Ms. Beischer pay to Mr. Cournoyer costs in the amount of $14,000 within 30 days.
Justice Engelking
Date: December 10, 2019
COURT FILE NO.: FC-18-1624
DATE: 2019/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Breanna Lynn Beischer, Applicant
AND
Brent Robert Laurier Cournoyer, Respondent
BEFORE: Justice Engelking
COUNSEL: Tanya C. Davies, Counsel for the Applicant
Marta Siemiarczuk, Counsel for the Respondent
ENDORSEMENT on costs
Engelking J.
Released: December 10, 2019
[^1]: Mattina v. Mattina, 2018 ONCA 867, paragraph 10
[^2]: Rule 24(12), Family Law Rules, O.Reg. 114/99, as am.
[^4]: 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.
[^5]: Rule 12(3) provides that a party with withdraws part or all of a prayer for relief shall pay the costs of every other party in relation to the requests withdrawn up to the date of withdrawal unless the court orders or the parties agree otherwise. Rule 14(16) provides that a party may withdraw a motion in the same way an application or answer is withdrawn under Rule 12.