Court File and Parties

Court File No.: FS-15-406517 Date: 2021-06-04 Superior Court of Justice - Ontario

Re: Gregory Howard Borschel, Applicant And: Debaroti Mullick Borschel, Respondent

Before: Kiteley J.

Counsel: Applicant, Self-represented Harold Niman and Jen-Yii Liew, counsel for the Respondent

Heard: in writing

Endorsement As To Costs

[1] In a decision dated January 13, 2021 [2021 ONSC 293] I directed the parties to make written submissions as to costs. I received the Respondent’s submissions dated February 8, 2021 and the Applicant’s submissions dated February 23, 2021. I did not receive reply submissions.

[2] As prior endorsements indicate, I have dealt with the following matters:

(a) a case conference held on July 31, 2020. The Applicant did not attend. I adjourned the case conference to September 9, 2020 and ordered the Applicant to pay $825.00 costs and reserved the balance of costs claimed to the next attendance.

(b) at the request of the Applicant, I adjourned the September 9, 2020 case conference to October 7, 2020.

(c) the Respondent brought an urgent motion returnable at the case conference on October 7, 2020. I heard submissions on October 7 and in an endorsement dated October 8, 2020, I established a timetable for the parties to make further submissions in writing. In an endorsement dated October 27, 2020, I made a temporary order for preservation of assets and for disclosure from third parties. I also established a timetable for the parties to make written submissions on the Applicant’s motion for an order that the Superior Court decline to exercise jurisdiction in this case.

(d) In the decision dated January 13, 2021, I dismissed the Applicant’s jurisdiction motion and I gave directions for the hearing of the Respondent’s motion in writing for temporary retroactive table child support and s.7 expenses. I also directed the parties to make these submissions in writing as to costs.

[3] The Respondent asks for an order for full indemnity costs in the amount of $40,673.72 including HST less the amount of $825 awarded in the endorsement dated August 4, 2020 leaving a balance due in the amount of $39,848.72 allocated as follows:

(a) full indemnity costs in the amount of $5,375.75 arising out of the case conference held on July 31, 2020 less costs ordered and paid in the amount of $825.00 for a balance of $4,550.75;

(b) full indemnity costs in the amount of $22,819.94 arising out of the Respondent’s motion for a preservation order and disclosure that was initiated on October 7, 2020 and continued in writing;

(c) full indemnity costs in the amount of $12,478.03 arising out of the Applicant’s in-writing jurisdiction motion.

[4] In his submissions, the Applicant takes the position that he should not be required to pay costs. He argues that the Respondent should be required to pay his costs in the amount of $24,380.33. He asks the court to take these factors into consideration:

(a) the Respondent has “thwarted all good faith efforts” to resolve matters for years. She has a desire to “hold the Applicant hostage” which prevents him from moving on with his life;

(b) he lists what he considers are “mutually agreed upon facts” and describes her conduct in the case as “bad faith spanning over ½ decade” which he asks that the court consider under Family Law Rule 24(5);

(c) with reference to the case conference on July 31, 2020, the Applicant asserts that the Respondent “deliberately misled the Court in 6 instances in her materials” and he attached as Tab A a list of those instances with a cross-reference to a document that he said demonstrated the deception;

(d) the Applicant asks that the court rely on rule 24(12) which refers to the behaviour of each party in the case and refers to attempts to settle;

(e) relying on S.(C.) v. S.(M.) he asserts that the Respondent’s misleading case conference materials for July 31, 2020 constitute bad faith;

(f) pursuant to rule 24(4), he took the position that, although she was successful in the jurisdiction motion, the Respondent had “behaved unreasonably” and demonstrated “bad faith spanning over ½ decade” and should be ordered to pay costs in the amount of $24,380.33 that he had incurred in connection with the case conference on October 7, 2020 and the assistance of counsel on the preservation motion and the jurisdiction motion;

(g) he referred to his “good faith offers to settle” the case and he listed at Tab B an outline of offers that he made or repeated on three dates in 2018, two dates in 2019 and five dates in 2020;

(h) the Applicant submitted that the Respondent brought her urgent motion returnable October 7 on less than 48 hours notice and she achieved only partial success. He also asserted that she made false statements or patent misrepresentations in her evidence. He relied on rule 24(6) to assert that the Respondent should not be entitled to full recovery costs;

(i) the Applicant stated that he had continuously provided child support for his children for six years without any order. He has made numerous good faith offers to avoid driving up legal costs. He incurred substantial debts from the marriage. He criticized his former counsel and argued that that was the reason why he has struggled to have counsel. He repeated his submission that the Respondent’s bad faith should not be rewarded and instead asked that the court order that she pay him full costs in the amount of $24,380.33.

Case conference held July 31, 2020:

[5] The Respondent had served notice of this case conference weeks earlier. It happened to be scheduled for 11 days after release of the reasons for decision by Sossin J. dated July 20, 2020 [2020 ONSC 4395]. As indicated in paragraph 3 of the January 13, 2021 endorsement, the Applicant said he would not attend because he disagreed with the decision dated July 20 and he intended to appeal.

[6] The Respondent was entitled to arrange that case conference and she was required to deliver a case conference brief and related materials. She incurred legal expenses to do so. As indicated in paragraph 5 of the January 13 endorsement, I adjourned to a case conference on September 9, made an order requiring the Applicant to provide disclosure and pay costs in the amount of $825.00. I also made an order requiring the Respondent to serve and file an offer to settle all remaining support issues.

[7] The Applicant deliberately did not attend on July 31, 2021. Pursuant to rule 24(10), the Court is required to determine the costs after a step in the case, which includes a case conference. The Respondent was deprived of the opportunity to move forward in the case because the Applicant refused to attend. Arguably, that was unreasonable conduct that would justify substantial indemnity costs. But the services rendered were primarily in relation to preparation of the case conference brief and related materials that were of use subsequently. In my view, the Respondent is entitled to partial indemnity costs of that case conference. I fix the costs to be paid by the Applicant in the amount of $3,223.89 less $825.00 paid on account for a balance of $2,398.89.

Adjournment of case conference scheduled for September 9, 2020

[8] The Applicant delivered a case conference brief dated August 27, 2020. He sent an email to the court dated August 31, 2020 in which he requested an adjournment of the September 9 case conference. In his email he described it as an extremely complex case for which he was not legally trained. He wrote as follows:

I would like the opportunity for a lawyer to be able to review my file in depth, and accordingly represent me for the case conference.

[9] The Applicant asked to adjourn to the first or second week of October.

[10] At the request of the Applicant, I adjourned the case conference to October 7, 2020 on conditions.

Case conference held October 7, 2020 and the Respondent’s preservation motion

[11] By the time of this hearing, the Applicant had left his job and his home in Toronto and accepted a job and arranged accommodation in Indianapolis. The Respondent brought an urgent preservation motion. In the endorsement dated October 27, 2020, I held as follows:

21. For purposes of this urgent motion, I find, based on the material he filed for the case conference in September and in response to the urgent motion, that (a) the Applicant did not disclose to the court and to the Respondent the true reason for the requested adjournment of the case conference scheduled for September 9, 2020; (b) the true reason was not, as he represented, to have the opportunity for a lawyer to be able to review his file in depth and represent him for the case conference; and (c) the true reason was to gain time to finish the move to Indiana.

[12] The Respondent did not achieve complete success on the preservation motion. However, she was successful in the preservation of assets at a crucial time when the Applicant was taking steps to leave Ontario and she was successful in obtaining an order for disclosure from the Applicant’s employer.

[13] The Respondent was successful and is presumptively entitled to costs. In keeping with rule 24(6), to reflect the fact that the Respondent did not achieve complete success, I order substantial indemnity costs in the amount $20,655.95. As indicated, this motion was brought by the Respondent on an urgent basis that required her lawyers to provide significant material on short notice. The bill of costs reflects the legal services required to respond to that urgent situation, which the Applicant had created.

Applicant’s jurisdiction motion

[14] In the endorsement dated January 13, 2021, I repeated the conclusion found in paragraph 21 of the endorsement dated October 27, 2020 and I concluded as follows:

133. Since I drew that conclusion in the endorsement dated October 27, 2020 on the preservation motion, the Applicant has filed extensive evidence on the jurisdiction motion as to his move to the United States. The Applicant did retain counsel who did appear on his behalf at the case conference on October 7. But, based on the significant evidence in this jurisdiction motion, I am reinforced in that earlier conclusion. For purposes of the jurisdiction motion, I am satisfied that the true reason for the adjournment request was to gain time to finish the move to Indiana and to manipulate the circumstances to what he perceived was to his advantage.

134. In my view, that is an abuse of process. The adjournment gave him the opportunity to complete his plan so as to present a fait accompli. It would be unfair to the Respondent to allow the Applicant to manipulate the Court in an effort to achieve some advantage. The Court must ensure that the Applicant is not permitted to rely on circumstances that he was able to orchestrate because he did not disclose the true reason for asking that the court grant him the indulgence of an adjournment.

[15] The Respondent was wholly successful and is presumptively entitled to costs. The Applicant was not successful on his jurisdiction motion. The Applicant’s deception constituted an abuse of process. For purposes of deciding the costs of this motion, I find that the Applicant was acting in bad faith. Pursuant to rule 24(8), the Respondent is entitled to full recovery costs in the amount of $12,478.03.

[16] I accept the Respondent’s submission that this was an all or nothing motion and offers to settle were not required.

[17] At the time of the hearing on October 7, the parties had already filed hundreds of pages of materials. In paragraph 8 of the endorsement dated October 8, I noted the changes as a result of converting court documents from paper to electronic. I made an order requiring counsel for the Respondent to file an electronic compendium, the contents of which were agreed upon, that contained the significant documents with an index that was hyperlinked to the document.

[18] That compendium would have been of great assistance to the court both in locating key documents (of which there are many), and in reducing the volume of material filed on the jurisdiction motion. Based on the communications between Ms. Liew and the Applicant, some of which were sent to the court office, Ms. Liew was unable to accomplish that objective. Based on those communications, I am satisfied that the Applicant did not understand that the compendium was meant as a neutral document designed to assist the court whereas he considered that it was an opportunity for him to insert material that was not admissible. In the end, to meet the filing deadline, the Respondent filed her material without the joint compendium. And the Applicant filed his own compendium, some of which was inadmissible material. The services rendered by counsel for the Respondent to comply with that order are appropriate expenses in the bill of costs.

Conclusion

[19] In paragraph 4, I have summarized the Applicant’s submissions to make it apparent that I have considered them. The Applicant has focused on his displeasure as to the conduct of the case, for which he blames the Respondent. However, the costs at issue arise from these events: case conference July 31, 2020, Respondent’s preservation motion and Applicant’s jurisdiction motion. I have accepted his submission with respect to divided success on the preservation motion. I do not accept the remainder of his submissions because they focus on his criticism of the Respondent since he started these proceedings and they are not relevant to the determination of costs for those three steps in the proceeding. Furthermore, in the context of costs at issue, it is the Applicant who has been found acting in bad faith.

ORDER TO GO AS FOLLOWS:

[20] By June 30, 2021, the Applicant shall pay costs to the Respondent in the amount of CAD $35,532.87 inclusive of HST, allocated as follows:

(a) with respect to the case conference held July 31, 2020, partial indemnity costs in the amount of $3,223.89 less $825.00 paid on account for a balance of $2,398.89;

(b) with respect to the case conference held October 7, 2020 and the Respondent’s preservation motion, substantial indemnity costs in the amount of $20,655.95;

(c) with respect to the Applicant’s in writing jurisdiction motion, full indemnity costs in the amount of $12,478.03.

[21] The Applicant is permitted to withdraw from the account ending 1629 at the Chase Bank the amounts referred to in paragraph 20. After payment of those sums, and as security for any financial obligations to the Respondent including retroactive child and/or spousal support, contributions to section 7 expenses and costs, the Applicant is restrained from directly or indirectly depleting, transferring, disposing of, removing or otherwise dealing with the proceeds of sale of his residence in Toronto held in account ending 1629 at the Chase Bank pending further court order.

[22] This order takes effect immediately without a formal order being signed and entered.

[23] This order bears interest at the rate provided by the Courts of Justice Act.

[24] Counsel for the Respondent shall serve a draft order consistent with paragraphs 20 to 23. If the Applicant approves the draft order, either of the parties may forward it to the Trial Co-ordinator to my attention for signing. If the Applicant fails to approve the draft order within 10 business days of service, pursuant to rule 1.09(b) of the Rules of Civil Procedure, counsel for the Respondent may forward to the Trial Co-ordinator an unapproved draft order to my attention for signing.

Kiteley J.

Date: June 4, 2021