Court File and Parties

COURT FILE NO.: FC1320/16 DATE: March 9, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Tracy Lee Brennan, applicant AND: Geoffrey Henry Fournie, respondent

BEFORE: MITROW J.

COUNSEL: Peter D. Eberlie for the applicant Kimberly L. Doucett for the respondent

HEARD: written submissions filed

Costs Endorsement

[1] This costs decision follows my order dated December 8, 2021 dealing with the applicant’s motion for compliance with undertakings, refusals to provide undertakings and other financial disclosure.

[2] The parties were permitted to serve and file written costs submissions within the time limits specified in the order. I have reviewed all the submissions filed, the last of which was the applicant’s reply dated February 18, 2022.

[3] The applicant seeks costs of $32,000 inclusive of fees, disbursements and HST.

[4] The respondent submits that this is a proper case for the court to exercise its discretion to order no costs; alternatively, if costs are to be awarded, the respondent submits that the costs should be on a “partial indemnity” scale.

[5] Each party included a bill of costs and their time dockets. Neither party served an offer to settle.

[6] Rule 24(1) creates a presumption of costs in favour of the successful party.

[7] The respondent relies on Mattina v. Mattina, 2018 ONCA 867 (Ont. C.A.). That case, at para.13, affirmed that consideration of success is the starting point in determining costs, citing with approval the decision of Aston J. in Sims-Howarth v. Bilcliffe, 2000 CarswellOnt 299 (Ont. S.C.J.), at para. 1.

[8] The applicant’s motion contained 19 paragraphs of relief sought. Other than a few minor instances, the applicant was successful as to the relief sought in her motion. Accordingly, the applicant is presumptively entitled to her costs.

[9] The respondent argues that a successful party’s presumptive entitlement to costs does not mean that a successful party is always entitled to costs. The court still must exercise its discretion taking various factors into account.

[10] This is not a case where a consideration of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, dealing with the court’s discretion to award costs, and the provisions of r. 24, including, in particular, the factors in r. 24(12), should result in the applicant being deprived of her costs.

[11] The respondent relies on the decision of Aston J. in Ramsay v. Ramsay, [1999] O.J. No. 4835 (Ont. S.C.J.) in support of his argument that no costs should be awarded. However, in that case, Aston J. awarded no costs on the basis that success was divided, which is not the situation in the present case.

[12] Under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the scale of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules: Beaver v. Hill, 2018 ONCA 840 (Ont. C.A.), at para 9.

[13] In Sims-Howarth, supra, Aston J., at para. 4, noted that the traditional scales of costs in the Rules of Civil Procedure are no longer applicable, and that under the Family Law Rules the court must fix costs at some figure between a nominal amount and full recovery. The conclusion of Aston J. that “the Family Law Rules demand flexibility in examining the list of factors in r. 24(11) [now r. 24(12)] without any assumptions about categories of costs” was approved in M.(C.A.) v. M.(D.), 2003 CarswellOnt 3606 (Ont. C.A.), at para. 42.

[14] I turn to the factors in r. 24(12).

[15] The applicant characterizes the respondent’s behaviour that led to the motion, and his refusal to provide information sought on the motion, as unreasonable. In her reply submissions, the applicant referred to non-disclosure as being the “cancer of family law” and relies on the following cases: Leskun v. Leskun, 2006 SCC 25, at para. 34, adopting Cunha v. Cunha, 1994 CarswellBC 509 (B.C.S.C.), at para. 9; and Leitch v. Novac, 2020 ONCA 257 (Ont. C.A.), at para. 44.

[16] The applicant submits that the respondent’s behaviour justifies “full indemnity costs” (paragraph 15, applicant’s costs submissions).

[17] The respondent rejects the characterization of his behaviour as unreasonable. The respondent points to his efforts to satisfy undertakings by providing various documents in his possession. The respondent claims to have acted in good faith and refers to letters forwarded by his counsel addressing the applicant’s requests.

[18] The respondent had provided, throughout, significant volumes of disclosure. For example, at paragraph 40 of the endorsement dated November 8, 2021 [1] deciding the applicant’s motion, it was noted that, in relation to the undertakings that included children’s expenses (those undertakings were not the subject of the applicant’s motion), that the respondent had provided a 25-page summary attaching 689 pages of receipts.

[19] The transcripts reveal that the respondent gave 88 undertakings. When this total is compared to the applicant’s motion in relation to refusals to comply with undertakings, the inference is that the respondent did comply substantially with his undertakings.

[20] The reality, and the important context, is that the respondent made significant voluntary disclosure in this case. In relation to his former employer, for example, the respondent did provide various disclosure in his possession in his attempt, unsuccessful as it turned out, to satisfy the applicant.

[21] The applicant refers to the respondent’s position on the motion that some of the disclosure sought by the applicant was “irrelevant.” The applicant submits that the respondent acted unreasonably in taking this position. In my view, the respondent, given the volume of disclosure already made, was entitled to take that position without having his conduct being labelled as unreasonable, even though the court did find that the respondent was wrong in doing so.

[22] Simply put, litigants are entitled to take a position, and to be wrong, without venturing into the waters of unreasonable conduct.

[23] Given the extent of the respondent’s disclosure made voluntarily, it is unfair, on the facts, to stigmatize the respondent and compare him with others who engage in conduct, including willful and deliberate behaviour, of financial non-disclosure that underlies the metaphor comparing it to the “cancer of family law.”

[24] Although the respondent is entitled to be wrong, there is a consequence – costs.

[25] This was an important motion for the applicant. She was entitled to the information sought to assist in assessing the respondent’s true income and her claim for spousal support and child support. Although the claims in the motion were not complex, the claims for compliance with undertakings, compelling productions in the face of refusals and requiring additional disclosure, were quite tedious and required some effort and time in preparing the material.

[26] Exclusive of HST and disbursements, the applicant’s fees were $26,910 and the respondent’s fees were $24,866.50.

[27] While the applicant’s counsel spent less time than the respondent’s counsel, the total fees for each party were quite similar given the higher hourly rate of the applicant’s counsel based on his seniority. The hourly rates of both counsel were reasonable, as were the hourly rates of junior counsel and law clerks.

[28] I find that the time spent for both parties was proportional to the importance and level of complexity of the issues and falls within the realm of reasonableness.

[29] The respondent submits that the disbursements relating to oral questioning and transcripts are not properly attributable to the motion because those expenses were incurred prior to the motion. While there is some merit to that submission, I do take into account that the transcripts were required to clarify what some of the undertakings were and to ascertain the evidence that related to some of the refusals. I allow 50 percent of this disbursement as a cost of the motion.

[30] The applicant’s costs totalled $32,905.08 inclusive of fees, disbursements and HST. Hence, the applicant’s costs request of $32,000 effectively constitutes full recovery. In Mattina, supra, the Court of Appeal for Ontario stated, at para. 15:

The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[31] While a court is not precluded from ordering costs on a full recovery basis in the absence of any of the circumstances listed in Mattina, the quantum of costs ultimately remains to be determined applying r. 24 and, in particular, the factors in r. 24(12).

[32] In her submissions, the applicant indicated that neither party served an offer to settle – that this was a “tedious, complicated all or nothing motion.”

[33] The applicant’s failure to serve an offer, particularly in circumstances where the applicant seeks full recovery costs, is a factor that can be taken into account. Rule 24(12)(a)(iii) requires the court to consider any offers. By implication, the failure to serve offers can be considered by the court in exercising its discretion as to costs.

[34] In the present case, there is no cogent reason for the failure to serve an offer – this applies to both parties. From the applicant’s perspective, even assuming this was an “all or nothing motion”, which is a characterization I do not share, an offer would have galvanized and communicated the applicant’s settlement position to the respondent with a potential of a counter-offer from the respondent.

[35] In dealing with “reasonableness” when quantifying costs, the court should not engage in a purely mathematical exercise; costs should be awarded on the basis on what a court views as a reasonable amount to be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722 (Ont. C.A.), at para. 52.

[36] I find that the applicant’s costs should be fixed in the range of 70 percent. Fees incurred by the applicant in the amount of $26,910, reduced to 70 percent, plus HST, total $21,286, which I round to $21,000.

[37] The total disbursements for the examination and the transcripts are $2,144.50. I allow 50 percent of that amount, $1,072.25. This disbursement is shown by the applicant as not being subject to HST. Remaining disbursements inclusive of HST are $352.28, which I allow. The total of the disbursements is $1,424.53, which I round to $1,425.

[38] The total of the fees, disbursements and HST is $22,425.

[39] The applicant requested that the costs order be enforceable by the Director. The respondent did not make any submissions opposing this request. I find that the motion was related substantially, if not entirely, to disclosure of information relevant to determining the respondent’s income. The entire costs amount shall be enforceable by the Director.

Order

[40] I make the following order:

1. The respondent shall pay to the applicant her costs of her motion fixed in the amount of $22,425 inclusive of fees, disbursements and HST within 30 days.
2. The full amount of the costs ordered in paragraph 1 shall constitute a support order and shall be enforceable by the Director pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

“Justice Victor Mitrow” Justice Victor Mitrow

Date: March 9, 2022

[1] Brennan v. Fournie, 2021 ONSC 7854 (Ont. S.C.J.)