COURT FILE NO.: FS-18-41588

DATE: 2021 08 23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stacy Henricus Christopher Stolp, Applicant

AND:

Lisette Maria (Silva) Stolp, Respondent

BEFORE: Coats J.

COUNSEL: Stacy Henricus Christopher Stolp, Self-Represented

Shelly Kalra, for the Respondent

COSTS ENDORSEMENT

A. Background:

[1] This costs endorsement follows my endorsement of May 11, 2021. At paras. 82 and 83 of that endorsement I made the following conclusions regarding the motions before me:

[82] In conclusion, I order as follows:

1. The Applicant’s claim to vary the interim support Order of Doi J. dated June 24, 2019 is dismissed.

2. The Applicant’s claim for a sale of the matrimonial home at 2380 Gladacres Lane, Oakville, is dismissed.

3. The Respondent shall forthwith receive $125,000 from the Applicant’s share of the net from the sale of the cottage held in trust to be credited to the Applicant as payment towards the support arrears. .

[83] I decline to determine the support entitlements and corresponding credits from the date of separation to July 1, 2019. These remain issues for trial. I decline to readjust support based on the Respondent’s expert’s income analysis from July 1, 2019 to present.

[2] At para. 84 I provided for written submissions as to costs. I have since received and reviewed the following:

i. Costs Submissions of the Respondent Lisette Maria (Silva) Stolp;

ii. Costs Submissions of the Applicant Stacy Stolp, dated June 7, 2021; and

iii. Reply Costs Submissions of the Respondent, Lisette Maria (Silva) Stolp.

[3] The parties agree that I am determining costs of the appearances before Gibson J. on December 10, 2020, before Kurz J. on January 13, 2021 and before me on March 23, 2021. Costs from December 10, 2020 and January 13, 2021 were reserved to the argument of the motions.

B. Positions of the Parties:

Respondent

[4] The Respondent is seeking costs on a full recovery basis in the amount of $21,127.61 for the three attendances. It is the Respondent’s position that she was wholly successful on the following issues: 1) she obtained release of $125,000 from the net proceeds of the sale of the cottage, which proceeds being held in trust; 2) the Applicant’s motion for a variation of the temporary child and spousal support order was dismissed; and 3) the Applicant’s motion to list the matrimonial home for sale was dismissed.

[5] It is the Respondent’s position that the Applicant acted in bad faith pursuant to r. 24(8) of the Family Law Rules. The Respondent claims that the Applicant should have consented to the adjournments on December 10, 2020 and January 13, 2021. Both times the motions were ultimately adjourned by the Court at the request of the Respondent. The Respondent submits that the Applicant did not come to the Long Motion with clean hands. He was in breach of court orders. He failed to provide proper documentary evidence. He stopped paying his share of the household expenses as he had been ordered to do by Doi J.

Applicant

[6] The Applicant disputes that the Respondent was successful. He submits that matters have just been delayed to the trial or pre-trial settlement. The Applicant is seeking costs in the amount of $15,000.

[7] The Applicant repeats several of the submissions he made on March 23, 2021 when the motions were argued. He also references in his submissions his position regarding the money the Respondent has received since separation and states that he has not received any funds from the sale of the cottage. The Applicant also refers to monies he submits he is entitled to from the value of the matrimonial home.

[8] The Applicant refers in his submissions to his position on the Respondent’s work history and income. The Applicant states that the Respondent “continues to provide fictitious information to the court related to income and business evaluations.”

[9] The Applicant submits that he is under dire financial strain and that his corporations are closed.

[10] The Applicant states that the Respondent and her counsel have not been cooperative.

C. Analysis:

[11] In my view the Respondent was the successful party. The Applicant’s motion to decrease the interim spousal and child support and his motion to sell the matrimonial home were both dismissed. These were the two main issues argued. Rule 24(1) of the Family Law Rules applies. The Respondent is presumed to be entitled to costs. There is no reason to depart from this presumption.

[12] In determining the quantum of costs I have taken into consideration that the Respondent was not entirely successful. I did not determine support entitlements and corresponding credits from the date of separation to July 1, 2019 as requested by the Respondent. I did not readjust the interim support based on the Respondent’s expert’s income analysis from July 1, 2019 to present as requested by the Respondent. I left these two issues to trial. These two issues were not the major issues argued at the hearing of the motions.

[13] There is no basis for the Applicant to be awarded costs. He was not successful on either of his motions and his motions were the major matters argued before me.

[14] The current law on r. 24(8) which provides that “[i]f 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”, is summarized at para. 23 of Henderson v. Legiehn, 2021 ONSC 5543, as follows:

[23] In Chomos v. Hamilton, at paras. 42-49, Pazaratz J. canvassed the case law pertaining to “bad faith” in the context of costs considerations. His Honour’s review is summarized as follows:

• Pursuant to Rule 24(8), if a party has acted in bad faith, the court shall decide costs on a full recovery basis and order the party to pay them immediately.

• Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: see S.(C.) v. S.(C.), 2007 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor, 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); and Cozzi v. Smith, 2015 ONSC 3626, 2015 ONSC 3626 (SCJ).

• In S.(C) v. S.(C), Perkins J. defined bad faith as follows:

In order to come within the meaning of bad faith in sub rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other 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.

• Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: see 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 (ON SC), 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (ON SC), 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); and Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).

• There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated: see Stewart v. McKeown, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W., 2015 ONCJ 94 (OCJ).

• To establish bad faith the court must find some element of malice or intent to harm: see Harrison v. Harrison, 2015 ONSC 2002.

[15] I do not find on the basis of the material before me that the Applicant acted in bad faith. The Applicant’s behaviour was not egregious. I do not find that he brought these motions to inflict financial harm on the Respondent nor to deceive the other party or the court. He did not meet the onus for an interim variation of support. He did not meet the test to revisit a prior order dismissing his request to sell the home. This does not rise to the level of bad faith.

[16] The Applicant did not provide disclosure that the Respondent had requested - invoices. He had not been court ordered to provide the invoices.

[17] The Applicant had not complied with the prior support orders. He did bring a motion to change these orders, which was one of the motions I dismissed, that had been before the court since December of 2020.

[18] I have considered the factors in r. 24(12). I have reviewed the Respondent’s Bill of Costs filed. The amount of time expended and hourly rates are reasonable. The motion was complex, with multiple affidavits and income analysis reports. The outcome was important to the Respondent as she received money from the proceeds of sale of the cottage, the interim support remained in place and the matrimonial home was not ordered sold.

[19] In conclusion, the Applicant shall pay to the Respondent costs fixed in the sum of $12,500.

Coats J.

Date: August 23, 2021