COURT FILE NO.: FS-14-82051-00

DATE: 2021 04 20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ann Marie Clarke-Hunter, Applicant

AND:

Sean Hunter, Respondent

AND:

Deloris Clarke, Added Third Party Respondent

BEFORE: Petersen J.

COUNSEL: Raymond Wrubel, for the Applicant

Raymond Sharpe, for the Respondent

Josephine De Whytell, for the Added Third Party Respondent

HEARD: (in writing)

costs ENDORSEMENT

[1] I rendered a judgment in this family law case on February 12, 2021 (2021 ONSC 1152). This Endorsement deals only with the issue of costs.

Parties’ Positions

[2] All three parties are seeking their costs.

[3] The Applicant (“Ann”) seeks an order for costs on a partial indemnity basis against the Respondent (“Sean”) in the amount of $55,365.48. The added Third Party (“Deloris”) seeks an order for costs on a substantial indemnity basis against Sean in the amount $29,893.47. Sean seeks an order for costs on a full indemnity basis in the amount of $51,864.22, equally apportioned between Ann and Deloris.

[4] Ann’s position on costs rests on submissions that: she was mostly successful in her claims against Sean; she was successful in defending against Sean’s trust claims; the outcome of Deloris’ cross-claim at trial was less favourable to Sean than the terms of an offer to settle that she made (which Sean did not accept); Sean acted unreasonably by failing to make full financial disclosure prior to the commencement of the trial; Sean’s failure to make timely and fulsome disclosure precluded productive settlement discussions; and Sean’s unreasonable conduct unnecessarily lengthened the trial.

[5] Deloris’ position on costs rests on submissions that: she was entirely successful in defending Sean’s trust claims against her; she was partially successful in her cross-claim against Sean; there is “an appearance of bad faith” with respect to Sean’s claims against her; Sean wasted the court’s time and the parties’ resources by asserting positions that were lacking in credibility and by re-arguing issues that had been decided by the Court; and Sean lengthened the trial unnecessarily by calling witnesses who had little to no relevant knowledge of the pertinent facts and were found not to be credible.

[6] Sean’s position on costs rests on submissions that: success in the case was divided; Ann and Deloris acted unreasonably, withheld relevant evidence, and misled the court; settlement discussions were unproductive because Ann failed to provide full disclosure of child-related expenses she incurred and proof of payment of same; the trial was lengthened by Ann’s and Deloris’ disorganization and lack of preparation; Deloris acted in bad faith by bringing a cross-claim against him; and Deloris delayed the proceedings unnecessarily, including adjournment requests that could have been avoided.

[7] Sean also submits that the fees charged by both Ann’s counsel and Deloris’ counsel are excessive. He argues that Deloris’ Bill of Costs should not exceed $12,000 and Ann’s Bill of Costs should not exceed $30,000 (on a full indemnity basis).

Analytical Framework

[8] The Family Law Rules with respect to costs serve three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation, (2) to encourage settlement, and (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395 at para. 8.

[9] Rule 18(14) of the Family Law Rules sets out the cost consequences of a party failing to accept an offer to settle where the offer meets certain formal requirements and the party making the offer achieves an outcome at trial that is as favourable or more favourable to them than the terms of the offer.

[10] Other rules with respect to costs stipulate that the following principles must be considered when determining entitlement to costs and when assessing the appropriate quantum of costs:

(a) A successful party is presumptively entitled to their costs: r. 24(1).

(b) If success in a case is divided, the court may apportion costs as appropriate: r. 24(6).

(c) A successful party who has behaved unreasonably during a case may be deprived of all or part of their own costs or ordered to pay all or part of the unsuccessful party’s costs: r. 24(4).

(d) Rule 24(5) stipulates that, in deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.

(e) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately: r.24(8).

(f) Rule 24(12)(a) provides that, in setting the amount of costs, the court shall consider 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.

[11] In the end, costs awards should reflect what the Court views as a fair and reasonable amount that should be paid by the unsuccessful party or parties: Serra, at para.12.

Respondent’s Request for Costs

[12] Sean’s request for an order requiring Ann and Deloris to pay his costs on a full indemnity basis is entirely without foundation.

[13] Sean was not successful