COURT FILE NO.: FS-13-04839 (Walkerton)

DATE: 2021 06 28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amy Pamela Batte, Applicant

AND:

Murray Allan Batte, Respondent

BEFORE: Justice J.R. Sproat

COUNSEL: M.A. Cummings, for the Applicant

G.E. Oldfield, for the Respondent

HEARD: June 17, 2021

ENDORSEMENT

ENTITLEMENT TO SPOUSAL SUPPORT

[1] I released Reasons for Judgment in this action on April 23, 2021. Mr. Oldfield now seeks to present further argument as to why there should not be a spousal support order.

[2] To put matters in context, in her opening argument Ms. Cummings indicated that Ms. Batte was seeking child and spousal support. In her closing submissions Ms. Cummings provided the court with spousal and child support calculations at various income levels.

[3] In Mr. Oldfield’s closing argument, he focused his submissions on the appropriate calculation of Mr. Batte’s income for support purposes and made no reference to spousal support. At the end of his submissions I asked if he took any issue with the fact that, if the income I determined resulted in spousal support being payable according to the Spousal Support Advisory Guidelines (“SSAG”), spousal support should be ordered at the mid-range. Mr. Oldfield did not really take issue with this. He simply responded pointing out that the parties had a modest lifestyle at the date of separation. He suggested that it would be unduly burdensome for Mr. Batte to pay spousal support as there was not enough cash available to do that.

[4] I understood that final argument was concluded. I then issued Reasons for Judgment finding that if Mr. Batte’s income was such that Ms. Batte was entitled to spousal support, then spousal support was ordered at the mid-range of the SSAG.

[5] In my Reasons for Judgment I also invited written costs submissions. In his written submission Mr. Oldfield indicated that he also wanted to argue that there was no entitlement to spousal support. This was on the basis that what he characterized as post-separation increases in Mr. Batte’s income should not be taken into account. Mr. Oldfield relied upon the general principles set out in Thompson v. Thompson, 2013 ONSC 5500.

[6] I then asked that the parties make oral submissions and address two issues. First, the spousal support argument. Secondly, so that Mr. Oldfield could make any further submissions as to whether Mr. Batte had conducted this litigation in bad faith.

[7] Mr. Oldfield indicated he thought entitlement to spousal support would be argued following the release of my Reasons for Judgment, in order to take into account my findings as to Mr. Batte’s income. That was never my understanding, nor did counsel give any indication that some arguments were reserved to a later date. I do not see any reason why this could not have been argued at the end of trial based upon the incomes that Ms. Cummings submitted were appropriate.

[8] Ms. Cummings objected to further argument regarding spousal support on the basis that I had decided that issue and that it would be an abuse of process to attempt to re-litigate this issue. I decided that I would reserve my decision as to whether it was too late for Mr. Oldfield to advance further argument. I also decided to at least hear the further submissions so that they are on the record.

[9] Mr. Oldfield’s argument was that the SSAG calculations resulted in spousal support being payable for 2017 – 2020 because Mr. Batte’s income had increased post-separation. Mr. Oldfield, however, acknowledged that there was no evidence as to Mr. Batte’s income for support purposes for the years 2012 – 2016 as Mr. Batte paid support for those years based on an imputed income and there was never an expert valuation of income for those years.

[10] Mr. Oldfield, however, asked me to infer that, since Mr. Batte started a dairy farm operation in 2016, and his gross income increased from $164,731 in 2015 to $540,397 in 2016, his income for support purposes in 2017 – 2020 was much higher than on the date of separation.

[11] I am not prepared to make this inference for a variety of reasons:

a) it would be speculative to infer income for support purposes from gross revenue;

b) even if a reasonable inference could be drawn that there is some correlation between gross revenue and income for child support purposes, there is no way to quantify the correlation. Does a 100 percent increase in gross revenue equate to a 10 percent, 50 percent or 100 percent increase in income for support purposes? Absent expert evidence, I have no idea; and

c) while not essential to my reasoning, I note that Mr. Batte’s Financial Statement of June 13, 2014 indicated that in 2013 he had self-employment income of $15,600. His next Financial Statement, dated June 26, 2018, indicated that in 2017 he had self-employment income of $12,660. His next Financial Statement dated November 9, 2020 indicated that in 2019 he had self-employment income of $11,077. His next Financial Statement of February 26, 2021 indicated that in 2020 he had self-employment income of $6,314. In other words, Mr. Batte consistently swore or affirmed that after the dairy operation started, his self-employment income was less than in 2013 shortly after separation.

[12] There is no evidentiary basis upon which to conclude that Mr. Batte’s income for support purposes has increased post-separation. Mr. Oldfield confirmed that he otherwise agrees with the calculations of spousal support Ms. Cummings prepared based on the income levels I determined in my Reasons for Judgment.

[13] As I will later explain, I conclude that Mr. Batte has conducted this litigation in bad faith. While I accept that Mr. Oldfield was acting in good faith in seeking to make further submissions on spousal support, I agree that it would be an abuse of process to entertain this argument after I had decided this issue. If I am in error, and Mr. Oldfield’s arguments should be considered, I have explained why I would reject them.

COSTS

INTRODUCTION

[14] I have considered the written and oral submissions by counsel. In the course of this endorsement I may make certain findings. In all cases such findings are based on the totality of the evidence and taking account of any reasoning and findings that appear later in the endorsement.

RESULT AT TRIAL

[15] For 2016 to 2020 I determined that Mr. Batte’s income for child support purposes averaged approximately $105,000. Mr. Batte was, therefore, obliged to pay child support arrears of $62,506 and spousal support arrears of $53,644.

OFFERS TO SETTLE

Ms. Batte

[16] On October 4, 2019 Ms. Batte made an offer to settle, the principal terms of which were that Mr. Batte would pay child support based on an imputed income of $70,000 and pay 50 percent of s.7 expenses. There was to be no spousal support and Mr. Batte was to pay $7,000 in costs.

[17] On January 9, 2020 Ms. Batte made an offer to settle the principal terms of which were that Mr. Batte would pay ongoing child support based on an imputed income of $86,849 and pay 69.4 percent of s.7 expenses. There was to be no spousal support and Mr. Batte was to pay $7,000 in costs.

Mr. Batte

[18] Mr. Batte made offers as follows:

a) in 2017 to pay child support based on income of $45,000 with no retroactive payment;

b) in October, 2019, to pay child support based on income of $35,000 with no retroactive payment;

c) in March, 2021, to pay child support, based on income of $55,000, retroactive to January, 2020.

HOW MR. BATTE CONDUCTED THE LITIGATION

Introduction

[19] Ms. Batte was originally represented by Ms. McClelland, a very capable and experienced family lawyer. Following her retirement Ms. Cummings, a very capable and experienced litigator, took over. Without the dedication and tenacity of these two lawyers many, many litigants in the position of Ms. Batte would have given up their rights. As I will explain, I find that this is precisely what Mr. Batte hoped for, if not counted on.

[20] I am, of course, not privy to what communications took place among Mr. Batte, his accountant, legal counsel, his expert, and family advisors. At least in terms of costs, Mr. Batte must bear the responsibility for the conduct of the litigation. If he has any complaints with others involved in the decision making, that is between him and them. I will refer to what Mr. Batte decided, or did or did not do, recognizing that others may have been involved in, or made, certain of the decisions.

[21] In Ms. Cummings’ reply submissions, she quoted a statement she said that Mr. Batte made at a Settlement Conference. Having regard to Rule 17(23), I disregard that statement in reaching my decision.

[22] I will highlight some of the factors which lead me to conclude that Mr. Batte has conducted this litigation unreasonably, and in bad faith, within the meaning of Family Law Rule 24(4), (5) and (8).

Refusal to Provide, and Extreme Delay in Providing, Proper Income Valuation

[23] Mr. Batte reported nominal line 150 income on his tax returns. For example, $8,399 in 2017; $9,061 in 2018; and $9,611 in 2019. A valuation of his income was clearly required to allow the parties to attempt to deal with the case justly which, as provided in Rule 2, includes ensuring that the procedure is fair and saving expense and time. This income valuation should have been provided early on in the litigation which was commenced on March 5, 2013. A key component of the income valuation was determining whether the capital cost allowance Mr. Batte could claim for tax purposes fairly reflected actual depreciation.

[24] In a letter dated June 27, 2016 Ms. McClelland confirmed that she was advised at the Settlement Conference that Mr. Batte was getting an income valuation. Follow up letters requesting the valuation dated September 9, October 14, October 25 and November 15, 2016 were not responded to. In a letter dated March 24, 2017 Mr. Batte’s former counsel took issue with the fact that Mr. Batte had committed to provide an income valuation.

[25] While it is unclear what happened in the interim, on July 11, 2018 Mr. Batte was ordered to produce an income valuation by September 19, 2018. Ms. McClelland scheduled a conference for October 24, 2018 anticipating the receipt of the income valuation and review of it by Ms. Batte’s expert. Mr. Batte’s income report, prepared by Mr. DeBrincat, was finally delivered on October 25, 2018.

[26] Ms. McClelland pointed out, by letter of November 5, 2018, that the report was a “calculation of value” that was not prepared in accordance with Canadian Institute of Chartered Business Valuators (“CICBV”) standards. Ms. McClelland renewed her request that a proper business valuation be provided by November 23, 2018.

[27] By letter dated November 15, 2018 Mr. Batte’s former counsel offered to have Mr. DeBrincat prepare a report in accordance with CICBV standards by the week of December 10, 2018. Ms. McClelland accepted that offer. The report was not delivered as promised.

[28] Then by letter dated January 3, 2019 former counsel for Mr. Batte announced that, “There will be no further report by Mr. Michael DeBrincat, at this time”. This resulted in the adjournment of a Settlement Conference that had been scheduled for January 25, 2019.

[29] Ms. Batte then had to spend more money having her expert prepare a written critique Mr. DeBrincat’s report, pointing out numerous deficiencies in the report. It appears that counsel then had some further discussion. Ms. McClelland then confirmed her understanding that Mr. DeBrincat would submit a proper report by March 29, 2019. He did provide a further report April 9, 2019.

[30] I am satisfied that Ms. McClelland was correct in stating in her June 27, 2016 letter that Mr. Batte had agreed to provide an income valuation. If he had not agreed to do so, surely his counsel would have corrected this misapprehension in response to four follow up letters requesting the valuation from September 9 – November 15, 2016. As such, I reject the suggestion in Mr. Batte’s former counsel’s letter of March 24, 2017 that he did not agree to provide the valuation.

[31] In summary, to get the income valuation that had been promised prior to June 27, 2016, Ms. Batte ultimately had to obtain a July 11, 2018 order requiring the valuation to be produced. Mr. Batte then:

a) on October 25, 2018 delivered a deficient report;

b) on November 15, 2018 Mr. Batte agreed to deliver a proper report;

c) on January 3, 2019 reneged on the agreement and said there would be no further report; and

d) on April 9, 2019 finally produced a further report.

[32] It, therefore, took almost three years from June 27, 2016, when Ms. McClelland confirmed that Mr. Batte had agreed to provide his income valuation, to the delivery of the valuation. In the interim, the litigation was stalled, two conferences were adjourned, and re-scheduling was pointless until the income valuation report was produced.

[33] I note that Mr. DeBrincat and Mr. Hilton (Ms. Batte’s expert) both agreed that actual depreciation was 50 percent of permitted capital cost allowance for tax purposes.

[34] Mr. Oldfield offered as a partial explanation for the delay the fact that Mr. Batte’s former counsel’s husband was diagnosed with cancer in August, 2017 and that this understandably disrupted her life and practice and ultimately led to Mr. Oldfield being retained in mid-2019. I take that into account, however, there was substantial, inexcusable delay both before and after August, 2017.

Eve of Trial Disclosure of Documents Detailing Purchase and Sale of Equipment

[35] Mr. Batte bought and sold a lot of farm equipment over the years. His income for tax purposes was reduced to a nominal amount by large claims for capital cost allowance (“CCA”). Ms. Cummings put a lot of time and effort into trying to piece together, from incomplete disclosure, what equipment was purchased, at what price and, if the equipment was subsequently sold, at what price. This was crucial to determine Mr. Batte’s income for support purposes.

[36] By letter dated February 6, 2020 Ms. Cummings asked for the working papers of the accountant who prepared Mr. Batte’s income tax returns. Ms. Cummings repeated that request by letter dated March 19, 2020. Ms. Cummings sent a further letter of April 29, 2020 repeating her request for the working papers and asking for purchase and sale information for approximately 40 pieces of equipment.

[37] On June 4, 2020 Ms. Cummings served a 35-page Request to Admit, approximately 20 pages of which was devoted to trying to secure admissions relating to the purchase and sale of equipment.

[38] Mr. Batte’s June 19, 2020 Response to Request to Admit was that the Request was so long a response could not be provided for and that “a detailed response will be provided in due course”.

[39] Ms. Cummings, by letter dated November 11, 2020, repeated her request for the working papers and offered to pay $500, presumably for copying. By letter dated November 30, 2020 Mr. Oldfield indicated that the working papers would be provided “forthwith”. In fact, the working papers for 2015 – 2019 were produced on March 29, 2021. The trial began April 7, 2021.

[40] The working papers largely consisted of copies of equipment purchase and sale documents. The accountants then compiled easy to read lists of equipment with purchase and sale prices. In other words, the working papers were primarily documents that originated with Mr. Batte.

Court Orders

[41] Ms. Cummings provided a Schedule I to her costs submissions being a Chart of Breaches of Court Orders and Non-Responses. I accept that this is accurate.

[42] I appreciate that there are probably very few cases where parties are in perfect compliance with court orders which are often on consent and contain boiler plate wording. Mr. Batte, however, has habitually disregarded court orders.

THE LAW

Obligation to Produce Relevant Documents and Provide Income Valuation

[43] In Tonogai v. Tonogai 2021 OnSC 2366, Bale J. Stated:

[22] It is not disputed on this motion that in family court proceedings the owner of an asset bears the burden of establishing the applicable value of the asset, and the earner of an income bears the burden of establishing his or her level of income. In some cases, this obligation extends to the creation and production of formal written expert reports, including formal business valuations and income analysis reports: see for example Michi v. Michi, 2008 728 (ONSC), Meeser v. Meeser, 2011 ONSC 6517, and Casdie v. Caskie, 2020 ONSC 7010 as referenced by the Applicant.

2. Scale of Costs – Bad Faith

[44] In Fearon v. Fearon, 2021 ONSC 2305, Trimble J. stated:

3. What is bad faith?

[45] Bad faith is characterized as conduct done with the intent to inflict financial or emotional harm on the other side, to conceal information relevant to the issues, to deceive the other party or the court, or actions designed to achieve a nefarious purpose. Conduct that is misguided but genuine, is not bad faith. (see: Negin v. Fryers, 2018 ONSC 6713, at para. 17; S.(C.) v. S.(C.) 2007 20279 (ON SC), [2007] O.J. No. 2164).

[46] In Jackson v. Mayerle, 2016 ONSC 1556, at para. 58 Pazaratz J. defined bad faith as:

“…the conscious doing of a wrong because of dishonest purpose or moral obliquity and involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).” It requires malice and intent to harm.

[47] The conduct amounting to bad faith is usually manipulating and falsifying evidence, intentionally failing to honour an agreement in order to achieve an ulterior purpose, or intentionally breaching a court order to achieve an ulterior purpose.

[45] In Gogas v. Gogas, 2011 ONSC 5368 Healey J. discussed bad faith as follows:

[8] In Nairn v. Lukowski (2002), 2002 78091 (ON SC), 29 R.F.L. (5th) 117 (Ont.S.C.J.) Blishen J. adopted the following definition of bad faith earlier defined by the court in Erickson v. Erickson (May 16, 2000), Doc. 00-FL-868 (Ont.S.C.J.), and Hunt v. Hunt, [2011] O.J. No. 5111 (Ont.S.C.J.): conduct that is intended to deceive or mislead can establish bad faith. It can also be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or, an intentional breach of a court order with a view to achieving another purpose. In his later decision of Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (Ont. S.C.J.), Blishen J. adopts the same definition.

[9] This formulation of bad faith accords with that set out in Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990), as follows:

Generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. Bad faith is not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

[10] The most extensive explanation for the meaning of bad faith comes from Perkins J. in S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (Ont.S.C.J.). At paragraphs 16 and 17 of the judgment he states:

[16] …The essence of bad faith is the representation that one’s actions are directed toward a particular goal while one’s secret, actual goal is something else, something that is harmful to other persons affected or at least something they will not willingly have supported or tolerated if they had known. However, not all bad faith involves an intent to deceive. It is rare, but not unknown in family cases, for bad faith to be overt – an action carried out with an intent to inflict harm on another person or a person affected by the case without an attempt to conceal the intent.

[17] In order to come within the meaning of bad faith in Rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

ANALYSIS

[46] The income valuation could and should have been produced in 2013 or 2014. In June, 2016 Mr. Batte agreed to provide an income valuation. He did not. In July, 2018 Ms. Batte obtained an order that he produce a valuation. Mr. Batte initially provided a deficient report. Then he agreed to provide a proper report only to renege on that agreement. Mr. Batte’s expert finally provided a report in April, 2019. Three years passed and a number of conferences, designed to address settlement, were adjourned. Costs were mounting.

[47] After all the foot dragging I have described, to add insult to injury, Mr. Batte took the position at trial that his own expert Mr. DeBrincat (who agreed with Mr. Hilton, Ms. Batte’s expert, that for the purpose of the income valuation it was appropriate to depreciate equipment at 50% of the allowable CCA rate), was not correct and he was not called as a witness. As such, his opinion was worthless for the purpose of advancing settlement discussions.

[48] I am satisfied that this stonewalling, and reneging on agreements, was a deliberate and calculated attempt by Mr. Batte to put pressure on Ms. Batte. I conclude that he thought that with his superior resources, including considerable parental assistance, he could win a war of attrition.

[49] The approximately 400 pages of Mr. Batte’s accountant’s working papers, requested 14 months prior to trial and produced 9 days prior to trial, contained lists of the equipment and copies of bills of sale and financing agreements respecting each piece of equipment. In other words, the working papers compiled information from source documents Mr. Batte provided to the accountants. These documents were highly relevant. Such documents should have been produced in 2013 and 2014 and updated as purchases and sale occurred over the course of the litigation. I also note that the working papers would have answered 20 of the 35 pages of Ms. Cummings’ Request to Admit served 9 months earlier.

[50] This put Ms. Batte in an unfair and difficult position. Ask for an adjournment of the trial or go to trial without her expert having an opportunity to review important documents. At trial Mr. Hilton, Ms. Batte’s expert, cited a number of examples of equipment that depreciated at far less than 50 percent of capital cost allowance for tax purposes. He testified, however, that he had not had time to analyze the working papers in detail. If he had, it is at least possible he would have amended his opinion to increase Mr. Batte’s income for support purposes.

[51] I find that the failure to disclose these documents earlier was an egregious breach of Mr. Batte’s duty to disclose. I further find that this was a deliberate attempt by Mr. Batte to prevent Ms. Batte from having relevant evidence and thus preventing the court from coming to a truly “just” result, which is the primary objective of family law rules.

[52] Mr. Batte also habitually treated court orders as mere suggestions, to be followed or disregarded as he saw fit.

[53] In light of all the evidence, Mr. Batte paying child support for 8 or 9 years based upon an imputed income of $30,000, barely above minimum wage, was unconscionable.

[54] In summary, and to paraphrase from the Gogas decision, I infer and find that Mr. Batte:

a) intended to deceive or mislead Ms. Batte by, over many years, failing to disclose clearly relevant documents;

b) dragged out this litigation with the intent to inflict financial harm on Ms. Batte;

c) conducted the litigation and ran up the litigation costs so high that he must have known he was unjustifiably inflicting major financial harm on Ms. Batte.

d) intended or was willfully blind to the fact that dragging out the litigation, with mounting costs, would undoubtedly cause emotional distress to Ms. Batte.

[55] I am satisfied that Mr. Batte conducted this litigation, from start to finish, in bad faith. As such , in accordance with rule 24 (8) Ms. Batte is entitled to costs on a full recovery basis.

THE AMOUNT OF COSTS

[56] Ms. Batte claims costs for the period May 13, 2013 to May 12, 2021, on what Ms. Cummings characterized as a “full recovery” basis, in the amount of $193,300.87 inclusive of HST. In fact, this amount is somewhat less than full recovery as:

a) only partial recovery costs were calculated for November, 2019 to January 20, 2019. (These costs total only $4,511.65);

b) some of Ms. McClelland’s costs were calculated on a partial recovery cost;

c) only $1,500 was claimed for additional cost submissions which was an estimate. Ms. Cummings’ time undoubtedly far exceeded that as the spousal support issue was also argued.

[57] A recurring theme in Mr. Oldfield’s written submission was that the time spent by Ms. McClelland and Ms. Cummings was disproportionate to the amount recovered. I am satisfied that Mr. Batte’s conduct of the litigation was the number one reason why so much time had to be expended. As such, I reject this argument.

[58] Mr. Oldfield points out that the Costs Outline claims for law clerks’ time while some of the time spent refers to secretarial functions, such as compiling books of documents for trial, which would ordinarily be part of overhead expense. I agree this may call for a relatively modest reduction.

[59] A July 11, 2018 court order provided that each side would bear their own costs related to the litigation and settlement of property issues. Mr. Oldfield submitted that only 34 percent of Ms. McClelland’s time was apportioned to the property settlement and that this was unduly low. In fact, Ms. Cummings reviewed Ms. McClelland’s dockets and excluded time spent on matters for which no costs could now be claimed such as conferences for which no costs were ordered, or motions for which costs were ordered and paid. Ms. Cummings then, in my opinion reasonably, allocated 50 percent of the remaining time to the property litigation.

[60] Mr. Oldfield further submitted that while Ms. Cummings is an experienced and capable lawyer her hourly rate of $440, which increased to $490 in 2021 was excessive in light of the recovery. Mr. Oldfield is also an experienced and capable lawyer, called to the Bar at about the same time as Ms. Cummings. He did not produce his dockets or disclosed his hourly rate.

[61] As Winkler J. observed in Risorto v. State Farm Automobile Insurance Co. 2003 ONSC 43566:

“… courts have repeatedly stated that the role of the court on a costs disposition is not to second guess successful counsel on the amount of time spent on the case.” (para. 9).

[62] Justice Winkler also observed that an attack on the quantum of costs, if the court does not have before it the bill of costs of the unsuccessful party, “is no more than an attack in the air”. I take that to mean an attack lacking an evidentiary foundation.

[63] Mr. Oldfield similarly submits that Mr. Hilton’s fees and disbursements are excessive. Mr. Hilton impressed me as a well qualified, conscientious expert. I am not prepared to find he wasted time, or spent an inordinate amount of time or charged Ms. Batte an excessive amount. I do, however, find that Mr. Hilton would have had to spend significantly less time if he had the working papers of Mr. Batte’s accountant from day one. In any event, Mr. Batte did not disclose his expert’s fees and disbursements so this is another “attack in the air”.

[64] The trial exhibits more than fill a banker’s box. There were complex valuation issues made much more difficult by the failure of Mr. Batte to make full and timely disclosure. I have no doubt that the time claimed was spent productively.

[65] I agree with Ms. Cummings’ submission that if a litigant like Ms. Batte does not receive a very substantial costs award the message it sends to a family law litigant, more often than not the wife, is that “she should just take the scraps offered and not insist upon being fairly treated.”

[66] I am satisfied that any minor allowed adjustments that might be appropriate are more than offset by the fact that certain of the costs calculated by Ms. Cummings were in fact calculated on a partial indemnity basis and she claimed only $1,500 for cost submissions when it turned out that It was necessary to make further argument with respect to spousal support.

[67] Stepping back from the calculations, looking at 8 years of litigation that was hard fought by both parties, and unfairly fought by Mr. Batte, I am satisfied that a global costs award of $193,000 is appropriate.

CONCLUSION

[68] Mr. Batte is ordered to immediately pay costs fixed in the amount of $193,000.

SPROAT J.

Date: June 28, 2021