Case Summary

The applicant sought full recovery costs after successfully obtaining an order for spousal support and striking the respondent's Answer due to his long-standing non-compliance with disclosure obligations and court orders. The court granted full recovery costs of $23,662.73, finding the respondent acted in bad faith and the applicant beat an offer to settle. The costs were ordered to be enforced as support by the Family Responsibility Office. interesting_citations_summary: > The decision applies the principles of costs under the Family Law Rules, O. Reg. 114/99, particularly rules 24(1), 24(12), 24(8) (bad faith), and 18(14) (beating an offer to settle). It reiterates that proportionality and reasonableness are "touchstone considerations" for fixing costs, citing *Beaver v. Hill*. The case provides a strong example of judicial sanction for egregious and willful non-compliance with disclosure obligations and court orders, leading to full recovery costs and enforcement as support, referencing *Wildman v. Wildman*. final_judgement: > The respondent was ordered to pay the applicant costs of the motion on a full recovery basis in the amount of $23,662.73, inclusive of disbursements and HST, payable by May 25, 2020. These costs are to be enforced as support by the Director, Family Responsibility Office (Ontario). The applicant may proceed with the uncontested affidavit trial by filing her material via email. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 3005 file_number: "FS-18-6867" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3005/2020onsc3005.html" cited_cases: legislation: - title: "Family Law Rules, O. Reg. 114/99" url: "https://www.ontario.ca/laws/regulation/990114" case_law: - title: "Mattina v. Mattina, 2018 ONCA 867" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca867/2018onca867.html" - title: "Beaver v. Hill, 2018 ONCA 840" url: "https://www.canlii.org/en/on/onca/doc/2018/2018onca840/2018onca840.html" - title: "McCormick v. Fishbayn, 2020 ONSC 351" url: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc351/2020onsc351.html" - title: "Wildman v. Wildman (2006), 82 O.R. (3d) 401" url: "https://www.canlii.org/en/on/onca/doc/2006/2006canlii33540/2006canlii33540.html" keywords: - Costs - Family Law Rules - Bad faith - Offer to settle - Spousal support - Disclosure obligations - Non-compliance - Full recovery costs - Family Responsibility Office areas_of_law: - Family Law - Civil Procedure --- # Court File and Parties **Court File No.:** FS-18-6867 **Date:** 2020-05-14 **Superior Court of Justice – Ontario** **Re:** Karen Elizabeth McCormick, Applicant **And:** Joseph Randal Fishbayn, Respondent **Before:** C. Horkins J. **Counsel:** Rick Peticca, for the Applicant Joseph Randal Fishbayn, appearing in person **Heard at Toronto:** In Writing --- # Reasons for Costs Decision ## Overview [1] On January 20, 2020, I granted the applicant’s motion. I ordered that the respondent pay monthly spousal support of $12,314.50, struck the respondent’s Answer and ordered that the applicant could proceed by way of affidavit evidence to an uncontested trial. If the parties could not agree of costs, I set a timetable for exchange of written submissions. [2] The applicant has filed detailed cost submissions and the respondent has not filed a response, despite ample opportunity to do so. His failure to file cost submissions is typical of his long standing non-compliant behaviour in this dispute. [3] The applicant seeks costs on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST. She seeks full recovery of costs for two reasons. First, the respondent has acted in bad faith. Second, the applicant made an offer that the respondent did not accept, and the result of her motion was more favourable than her offer. ## Legal Framework [4] The [Family Law Rules, O. Reg. 114/99](https://www.ontario.ca/laws/regulation/990114) are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: [Mattina v. Mattina, 2018 ONCA 867](/on/onca/2018/867). [5] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court “shall consider” in “setting the amount of costs” as follows: (12) In setting the amount of costs, the court shall consider, (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. [6] As this rule states, proportionality and reasonableness are the “touchstone considerations” to be applied when fixing the amount of costs: [Beaver v. Hill, 2018 ONCA 840 at para. 12](/on/onca/2018/840). [7] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14). ## Analysis [8] The applicant was successful on her motion and is entitled to costs. She is entitled to full recovery costs because the respondent acted in bad faith and she served an offer to settle before her motion that meets the conditions set out in Family Law Rule 18(14). [9] The applicant’s Bill of Costs reveals the extent of the work that was required to prepare the motion material and argue the motion. The motion was very important to her. The respondent had intentionally ignored his fundamental obligation to make full disclosure of his income for several years. He ignored court orders and was not paying spousal support to the applicant. It is important to the applicant that this conduct be sanctioned and that she receive the spousal support she needs. [10] The time incurred was significant because of the respondent’s conduct. The applicant was able to obtain some banking records after the respondent finally signed authorizations. These bank records raised numerous questions and revealed many more documents that were never produced. The applicant was left trying to piece together, for her motion, the respondent’s financial circumstances and income from his dental practice. [11] The legal work was shared with law clerks and this reduced the fees incurred. The issues on this motion were of moderate complexity. In summary, the full recovery amount was reasonable and proportionate to the importance and complexity of the issues. [12] Prior to the motion the applicant served an offer to settle pursuant to Family Law Rule 18. This offer meets the requirements of rule 18(14) and therefore triggers her right to full recovery of costs from the date of the offer, January 14, 2020. [13] This is a clear case of bad faith. As a result, the applicant is entitled to full recovery of her costs under rule 24(8). I rely on my Reasons for Decision ([McCormick v. Fishbayn, 2020 ONSC 351](/on/scj/2020/351)) to support this finding of bad faith. The respondent’s conduct is reviewed below. [14] The parties separated in December 2012. In 2014, they started a collaborative law process with counsel. Since 2014, the respondent has refused to comply with his obligation to make full disclosure. At para. 17, I stated: [17] In 2014, the parties started a collaborative law process. Both had counsel. The Respondent refused to negotiate in good faith. He would not commit to a financial position and refused to provide disclosure. As a result, the process dragged on with no resolution. The Respondent refused to provide even the most basic disclosure. The Applicant had no choice but to opt out of the collaborative process. She commenced this application in December 2018. [15] After the application was commenced, the respondent’s non-compliance continued. He filed an Answer and a financial statement that did not comply with the Family Law Rules. He attended two case conferences before Justice Stevenson without making proper disclosure. At para. 22, I stated: [22] At the first case conference on June 21, 2019, Justice Stevenson recorded that equalization and spousal support were the main issues. She stated that there are “many outstanding disclosure issues … the Applicant seeks significant disclosure today which is reasonable and needs to be provided so that the matter moves forward.” Justice Stevenson made several orders. The Respondent was ordered to produce all of the disclosure in the Applicant’s Request for Information by August 30, 2019, the Applicant was allowed to bring motions if necessary and a further case conference was scheduled for September 23, 2019. [16] The respondent signed the authorizations allowing the applicant to obtain some disclosure directly from banks where the respondent or his dental practice had accounts. Even after some bank records were produced, significant disclosure remained outstanding. The respondent alleged that he could not afford to hire an accountant to complete his income tax returns and yet the bank records revealed that he did have money. [17] A second case conference was held before Justice Stevenson on September 23, 2019. Justice Stevenson confirmed that the respondent had not complied with the orders she made on June 21, 2019. As a result, Justice Stevenson stated that the case conference was “a wasted attendance” and nothing was accomplished. [18] When the applicant’s motion was heard, the respondent remained in breach of the June 21 and September 23 orders. I found that the non-compliance (re disclosure) was “significant” and set out a lengthy list of what the respondent had not produced. [19] At paras. 70-71 of my Reasons for Decision, I explained the basis for striking the respondent’s Answer as follows: [70] There are triggering events that justify this order. The Respondent has refused to provide disclosure since the start of the collaborative process in 2014. He has refused to comply with two court orders. These orders set out a detailed list of what he was required to produce and a deadline for compliance was included. The Respondent has not paid the cost order. [71] There is no point in issuing yet another order for compliance. The Respondent has demonstrated that he has no intention of complying with the court orders. On this motion, the Respondent did not even bother to file a meaningful affidavit. He has had years to produce his financial disclosure. His overall approach is to stall the final adjudication of the issues. I find that he has demonstrated willful non-compliance with his disclosure obligations and the court orders. Such conduct is egregious and exceptional, and it is appropriate to strike his pleading. No other remedy will suffice. [20] Apart from some uncharacterized payments that the respondent made to the applicant after separation, he has refused to pay spousal support. He concedes in his Answer that the applicant is entitled to spousal support and yet refuses to pay support. As I stated in para. 47 “[t]he Respondent has the ability to pay spousal support and is simply refusing to do so.” [21] The respondent’s conduct rises to the level of bad faith. It cannot be explained as bad judgment or negligence. The respondent’s prolonged pattern of conduct had one purpose and that was to conceal his financial circumstances and delay resolution of this dispute, to the detriment of the applicant. [22] In summary, the applicant is entitled to costs from the respondent on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST. The costs shall be enforced as support by the Family Responsibility Office ([Wildman v. Wildman (2006), 82 O.R. (3d) 401 at paras. 54-56](https://www.canlii.org/en/on/onca/doc/2006/2006canlii33540/2006canlii33540.html)). [23] The dispute between the parties has been ongoing since 2014 when they started a collaborative law process. I have already ordered that the applicant can proceed by way of affidavit evidence to an uncontested trial. In this COVID 19 crisis the applicant may proceed with this uncontested trial and materials shall be filed by email at FamilyTrialOffice-SCJ-Toronto@ontario.ca. ## Conclusion [24] I make the following orders: 1. The respondent shall pay the applicant her costs of the motion on a full recovery basis in the amount of $23,662.73 inclusive of disbursements and HST. 2. The costs are payable no later than May 25, 2020. 3. The costs shall be enforced as support by the Director, Family Responsibility Office (Ontario). 4. The applicant may proceed with the uncontested affidavit trial by filing her material at FamilyTrialOffice-SCJ-Toronto@ontario.ca. --- C. Horkins J. Date: May 14, 2020