Court File and Parties

COURT FILE NO.: FC-19-929 DATE: 20210216 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Kane, Applicant AND: Klayton Kane, Respondent

BEFORE: McDermot J.

COUNSEL: Paul Portman, for the Applicant Shannon L. More, for the Respondent

HEARD: By written submissions

Costs Endorsement

[1] On January 7, 2021, the parties argued a motion brought by the Applicant Wife. Although there were a number of heads of relief in the Applicant’s motion, because of time constraints the only issue argued was the Applicant’s request for partition and sale of the jointly owned matrimonial home.

[2] I dismissed the Applicant’s motion for the sale of the home. I did this because there was a consent order made October 1, 2019 which permitted the Respondent to purchase the Applicant’s interest in the home if the Respondent obtained a mortgage commitment within 30 days of the agreement which he did. Although Ms. Kane asked that the underlying agreement be set aside based on material misrepresentation on the part of the Respondent, she was unsuccessful, and the consent order stands.

[3] The Respondent has made costs submissions. The Applicant argues that the Respondent is not entitled to his costs and makes various submissions as to entitlement as to costs. However, that ship has already sailed. I determined that the motion was dismissed with costs, and that the Respondent was entitled to costs to be deducted from the Applicant’s share of the home. The only issue before me is the quantum of the Respondent’s costs.

[4] The Respondent requests full recovery costs. Full recovery costs are an exception to the rule; costs are for a number of purposes of which indemnifying the claimant is only one: see Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (C.A.). Unless special circumstances intervene, costs are generally awarded on a partial recovery basis.

[5] The Respondent requests full recovery costs for two reasons:

a. The Applicant’s behavior was unreasonable: see Rule 24(12)(a)(i) of the Family Law Rules; [1] and

b. The Respondent made an offer to settle within the meaning of Rule 18.

Unreasonable Behavior

[6] Under Rule 24(12)(a)(i), the court can order a greater amount of costs based upon unreasonable behavior. Although this is not the same thing as bad faith behavior which mandates full recovery costs under Rule 24(8), [2] the principle is the same: should a greater amount of costs be awarded in a matter because a party has acted unreasonably? The rationale is clear; the costs of a party are increased when he or she has to address unreasonable or poor behavior and the person guilty of that behavior should pay for it.

[7] In this case, the Respondent says that the Applicant is guilty of unreasonable behavior on a number of fronts. She ignored the page limits placed on affidavits by the various Notices to the Profession issued as a result of Covid [3] as well as the directions of the conference justice. [4] Ms. More says that the Applicant ignored suggestions from the conference judge and took an unreasonable position under the circumstances considering the terms of the previous agreement between the parties.

[8] By my observation, the Applicant did all of these things and more. She also attempted to argue issues which would bring the argument of the motion well beyond the one hour limit for regular motions again mandated by the Notice to the Profession; this caused the Respondent to respond to a number of issues which ended up not being argued. She misrepresented her hardship in deposing that she was continuing to share the costs of the home when she actually was not. She also alleged misrepresentation, essentially fraud committed by the Respondent, and then failed to provide any compelling evidence of those misrepresentations; there is case law which provides that unfounded allegations of fraud attract a finding of unreasonable behavior: see Bemrose v. Fetter, [2006] O.J. No. 1048 (Ont. S.C.J.).

[9] The Applicant suggests that the Respondent was guilty of unreasonable behavior as well. However, I have some issues with the Applicant’s assertions regarding the Respondent’s behavior. For example, the Applicant says that the Respondent improperly reported to the police the Applicant’s theft of a video camera; the Applicant says that all that she was doing was enforcing an order made by Justice Douglas prohibiting video recording of the parties. This could also, however, be seen as “self help”; the place to go regarding any alleged breach of an order is the court rather than getting onto a ladder and removing the offending equipment. I note that removing the camera could also be seen as unreasonable behavior by the Applicant.

[10] Many of the other allegations of delay and failure to disclose and negotiate on a timely basis are a rehashing of assertions which I found to be unproven on the motion: for example the complaint of delay in disclosure is unfounded when the last remaining disclosure item left outstanding was the valuation of the Applicant’s pension.

[11] For these reasons, I find that the Applicant is guilty of unreasonable litigation conduct in her presentation and argument of this motion.

Offers to Settle

[12] The Respondent made an offer to settle which was attached to her Costs Submissions.

[13] That offer is insufficient to allow an award of full recovery costs under Rule 18. The Respondent’s offer is a final offer on equalization which provided that the matrimonial home would be transferred into the Respondent’s name, with a corresponding equalization payment by the Respondent to the Applicant of $168,150. That is an offer to settle the equalization issues on a final basis and has nothing to do with the motion in question. The offer must be related to the motion for which costs are being sought and must be a bona fide effort to come to a compromise on the issues on the issues before the court: see Beaver v. Hill, 2018 ONCA 840. As admirable as an effort to settle the entire matter may be, the offer must address the motion and not the entire litigation.

[14] The parties have been attempting to negotiate a settlement as disclosed by draft Minutes as attached to the Applicant’s costs submissions and the Applicant suggests that I should “go slow” in addressing costs under the circumstances. I note that the parties could have delayed my costs determinations on consent and they did not and I therefore assume that I should proceed to address costs of the motion on a timely basis as required by the Rules.

[15] I take into account, however, the various entreaties by the Respondent to withdraw the motion because of the previous agreement. These appear to have been ignored. I note that the Applicant appears to have taken an unreasonably aggressive approach to the litigation considering the advice of the conference justice and the attempts by the Respondent’s counsel suggesting that the Applicant see the light. This has to be reflected in the costs award as per Rule 24(12(a)(iii).

Award

[16] The Respondent’s full recovery costs for the motion (including the appearances this summer on the issue of urgency) are $7,734.85 inclusive of HST. No disbursements are claimed. Working backwards from the hourly rate claims, [5] the lawyer’s hourly rate is $125 per hour for a 2015 call, which is extremely reasonable under the circumstances. This is especially so upon review of the Applicant’s bill of costs which is well more than double the Respondent’s claim for costs.

[17] The Respondent is not entitled to full recovery costs for the reasons set out above. In setting a costs amount, I take into account the Applicant’s unreasonable litigation behaviour as outlined above as well as her refusal to discuss the requests by the Respondent to abandon her motion for sale which proved to be ill founded, especially in light of the advice from the case conference justice and her failure to provide evidence of alleged misrepresentation and fraud.

[18] The Respondent shall have his costs of the motion in the amount of $5,500 inclusive of HST and disbursements to be deducted from the Applicant’s share to be paid or credited to her for the transfer or sale of the matrimonial home.

Justice J.P.L. McDermot Date: February 16, 2021

Footnotes

[1] O. Reg. 114/99

[2] See Scipione v. Del Sordo, 2015 ONSC 5790 and S.(C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. S.C.J.)

[3] See https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/

[4] Strictly speaking, Mr. Portman’s material did stick within the page limits. However, he would put in one page of a document in his client’s exhibits and refer the court to the entire document. A request that the motions judge read more than the page limits breach the directive as much as the filing of documents exceeding those page limits.

[5] An hourly rate was not inserted in the Bill of Costs.