COURT FILE NO.: 19-88

DATE: 20210429

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rodney Neil Fraser, Applicant

AND:

Carol Patricia Fraser, Respondent

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Robert W. Scriven, for the Applicant

Judith Wilcox, for the Respondent

HEARD: In writing

Ruling on Costs

Introduction

[1] On March 12, 2021 the Court released the Ruling from a motion heard February 19, 2021 where the issues involved a s.71 Land Titles Act (“LTA”) Notice and cross motion for a restraining (preservation) order. The parties were unable to resolve the issue of costs.

Costs

[2] In determining costs, the starting point is s. 131 of the Courts of Justice Act, which sets out that costs are within the discretion of the court. Also of consideration are the Family Law Rules, including Rule 24 (costs) and Rule 18 (offers to settle), and the relevant case law.

[3] Some general themes that emanate from the Rules and the case law are:

a. A successful party in a family law case is presumptively entitled to costs, subject to the factors set out in Rule 24 FLR. The Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded. See Beaver v. Hill, 2018 ONCA 840, at paras. 9 and 10.

b. A costs award should be a "fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigant": Boucher v. Public Accountants Council (Ontario)(2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.).

c. A "fair and reasonable amount" is that amount which the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation: Lupien v. Carmichael, 2017 ONSC 2929, at para. 9.

d. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs. Proportionality is a core principle that not only governs the conduct of the proceedings generally, but is specifically applicable to fixing costs: Beaver v. Hill, supra, at paras. 12 and 19.

e. The burden of proving that the order is as favourable as, or more favourable than the offer to settle, is on the party who claims the benefit of Rule 18(14) FLR: Rule 18(15) FLR. See Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ).

f. Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141.

Analysis

[4] The Court is of the view that the motion resulted in close to divided success. There was also problematic conduct by both litigants, such as the improper registration of the s.71 LTA Notice on title and disclosure issues.

[5] The Court found that the Applicant was not forthcoming in providing the disclosure as ordered, and some of the disclosure was not provided by the time the motion was argued. As stated by the Supreme Court of Canada in Leskun v Leskun, 2006 SCC 25, nondisclosure is the cancer of family law. As the Ontario Court of Appeal noted in Leitch v. Novac, 2020 ONCA 257, nondisclosure metastasizes and impacts all participants in the family law process.

[6] The Court agrees with the Applicant’s submission that there is a key distinction between a s. 71 LTA Notice and a s. 12 Family Law Act restraining order. The former indicates an interest in the land, while the latter simply reflects that there is an order for the preservation for the purpose of an equalization payment.

[7] The Court disagrees with the Respondent’s submission that the Applicant’s offer to settle was to have the Respondent “surrender unconditionally”. This Court found the Applicant was correct in his position that the Notices were improperly on title. Rather than achieve the result sought in the proper fashion by bringing a motion, the Respondent improperly registered limiting notices on title and provided the Applicant only two days notice prior to the sale of a property. Though the Respondent cooperated in facilitating the sale of land to pay out a secured creditor, costs were unnecessarily incurred due to the Notices.

[8] By registering the s. 71 Notice on title, the Respondent attempted to achieve a result through the back door which could not be achieved without judicial intervention by using the proper avenue, or going in the front door. Such conduct cannot be encouraged.

[9] The results were mixed. While nondisclosure cannot be tolerated, a disclosure motion, or a motion to enforce the order could have been scheduled by the Respondent to rectify the issue.

[10] I am very troubled by the improper registration of the s.71 Notice on title.

[11] I have considered the offers to settle, the capable submissions of counsel, the case law, and the Rules. I recognize that the Applicant seeks costs in the amount of $5,000.00, which is less than partial indemnity. The Respondent seeks costs of $11,477.42, or full recovery.

[12] I recognize that ultimately, the court retains a residual discretion to make costs awards which are proportional, fair and reasonable in all the circumstances.

[13] In these circumstances, the fair, reasonable and proportional costs award is in the amount of $5,000.00, in favour of the Applicant.

Justice Hélène C. Desormeau

Date: April 29, 2021