Court File and Parties

COURT FILE NO.: FS-20-43613 DATE: 2021-05-10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.M., Applicant AND: N.S., Respondent

BEFORE: Conlan J.

COUNSEL: Murray N. Maltz, Counsel for the Applicant Herschel Fogelman and Lauren Daneman, Counsel for the Respondent

ENDORSEMENT on costs

I. Introduction

The Motions

[1] Two Motions were argued on April 8, 2021. First was the Motion brought by the Applicant husband, N.M., dated March 17, 2021, seeking disclosure. Second was the Motion brought by the Respondent wife, N.S., dated March 30, 2021, seeking temporary child and spousal support and the release of funds, then held in trust, from the net proceeds of sale of two jointly owned properties.

The Result

[2] In this Court's Endorsement dated April 9, 2021, reported at N.M. v. N.S., 2021 ONSC 2680, the husband's disclosure Motion was dismissed entirely, and the wife's Motion was granted in large part.

[3] The litigants were invited by the Court to try to settle the issue of costs of the two Motions. They have been unable to do so. Written submissions have been filed by each side, for which this Court is grateful.

The Positions of the Parties

[4] The successful party, the wife, requests costs on a full indemnity scale in the total, all-inclusive amount of $33,820.33, to be paid forthwith from the husband's share of the remaining net proceeds of sale being held in trust.

[5] The wife submits that she met or bettered her offers to settle dated April 6, 2021 (regarding the husband's disclosure Motion) and March 30, 2021 (regarding her own Motion).

[6] In addition, or in the alternative, the wife submits that she should receive her full indemnity costs because of the husband's alleged bad faith conduct – before, during, and after the Motions were heard.

[7] The unsuccessful party, the husband, suggests that the proper scale of costs here is partial indemnity. He disputes that the wife met or bettered her offers to settle or either of them, and he disagrees that he acted in bad faith. Further, he disputes certain aspects of the wife's counsel's time dockets and Bill of Costs.

[8] In the end, partial indemnity costs of $7500.00, total all-inclusive, in favour of the wife, is the award suggested by the husband.

II. Analysis and Conclusion

The Issues

[9] There are three issues to decide: (i) entitlement to costs, (ii) scale of costs, and (iii) quantum of costs.

Issue Number One - Entitlement to Costs

[10] The wife was successful on both Motions. As such, she is presumptively entitled to some costs. There is nothing present here that would operate to displace that presumption; the husband does not argue that there is.

[11] Thus, the wife will receive some costs.

Issue Number Two - Scale of Costs

[12] I agree with the wife that, looking at her April 6, 2021 Offer to Settle and this Court's Endorsement dated April 9th, all five criteria outlined at 18(14) of the Family Law Rules have been met. Hence, the wife is presumptively entitled to costs to the date of the said Offer and full recovery of costs from that date. There is nothing here to depart from that presumption.

[13] I disagree with the wife, however, that she met or bettered her March 30, 2021 Offer to Settle. It was certainly a reasonable offer, and it still should be considered, but the Offer's provisions on support retroactivity, alone, preclude a finding on balance that the five conditions under 18(14) of the Family Law Rules have been satisfied.

[14] With one exception, I further disagree with the wife that the husband has acted in bad faith. I think that the husband's disclosure Motion was too broad, premature, unnecessary, and (with regard to the proposed prohibition against the wife asking for any support in the interim) harsh. As well, I think that the husband's position on the wife's Motion was unreasonable and (with regard to the proposed release of funds being held in trust) unsupported in law.

[15] Collectively, however, those observations do not cause this Court to find that the "very high threshold" for bad faith has been met. Bortnikov v. Rakitova, 2016 ONCA 427, at paragraph 29.

[16] The one exception is the husband's failure or refusal to comply with this Court's Order that the release of the funds held in trust be done "forthwith". This Court attempted to be as fair as possible to both sides, evidenced by the fact that the wife's alternative argument was accepted which ordered the release of the same amount of money to each party, yet the husband still dragged his feet in ensuring that the Order was respected. Consideration of any appeal or not, that conduct was more than unreasonable and amounts to bad faith on the part of the husband.

[17] Having regard for all of the above circumstances, although this Court will not be awarding full indemnity costs in favour of the wife, this Court will be making an award that is somewhere between partial and substantial indemnity recovery.

Issue Number Three - Quantum of Costs

[18] Quantum of costs is discretionary. The goal is to respect the purposes of modern costs awards, (i) to partially indemnity successful litigants, and (ii) to encourage settlement, and (iii) to address bad or inappropriate conduct by or on behalf of litigants, and to craft something that in the end can be described as being fair, just, reasonable, and proportionate.

[19] I have reviewed but do not accept the husband's complaints about the wife's counsel's time dockets and Bill of Costs. A Bill is to be assessed but not meticulously, unless there is good reason to do so. A line-by-line analysis is neither required nor helpful, provided that the Bill, standing on its own, is considered to be fair and reasonable. Smith Estate v. Rotstein, 2011 ONCA 491, at paragraph 54.

[20] In particular, I reject all of the submissions made at paragraph 32 of the husband's costs argument, but for one. I would not have allowed the full fees attributed to Ms. Daneman for the Court appearance on April 8, 2021, for the reasons given by counsel for the husband.

[21] Otherwise, the Bill of Costs filed by the wife's counsel is fair and reasonable.

The Order of the Court

[22] That Bill's partial indemnity costs are $20,201.57, plus post-Endorsement costs of $2705.22. On account of the analysis offered above, I will maintain the $20,201.57 figure as is. I would have reduced it somewhat to deal with Ms. Daneman's fees docketed for the hearing date appearance, but I also would have increased it for the reasons stated previously. I will treat that balancing as a "wash". Due to the husband's bad faith conduct post-Endorsement, the full $2705.22 will be added thereto.

[23] That results in an Order that the husband shall pay to the wife costs in the total amount of $22,906.79. The husband shall pay that sum forthwith (that means immediately), and that sum shall be paid out of the husband's share of the remaining net proceeds of sale being held in trust.

[24] In all of the circumstances, I think that is a fair, just, reasonable, and proportionate costs award.

("Original signed by")

Conlan J.

Date: May 10, 2021