COURT FILE NO.: FS-22-0044844-0000 (Milton)
DATE: 2022 11 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nicole MATHESON
Sarah Boulby, for the Applicant
Applicant
- and -
Jeffrey Rice Holmes MATHESON
A. Feldstein, for the Respondent
Respondent
HEARD: In Writing
COST ENDORSEMENT
RSJ RICCHETTI
[1] This matter came before me on August 31, 2022 and returned on a disputed issue on September 29, 2022.
[2] The parties were given an opportunity to make written submissions on the issue of costs. The main parties did so.
[3] The Applicant, Nicole Matheson, seeks costs of $21,273.36 on a full recovery basis as against the Respondent, Jeffrey Rice Holmes Matheson.
[4] The Respondent submits that the costs sought are excessive. The Respondent submits that full fees should be set at a maximum of $10,509 (all inclusive) and hence on a partial indemnity basis, $7,902.08 for fees and only 50% of the disbursements.
Entitlement
[5] It is conceded that the Respondent pay costs to the Applicant of the motion/attendances before me.
Scale
[6] The history of this proceeding clearly demonstrates a wilful disregard of and deliberate delay to make the Respondent’s full and complete financial disclosure obligation. This necessitated the motion. It would otherwise have been unnecessary. This was not the first time that the Respondent was ordered to make disclosure and it was only at the return of this motion that the Respondent agreed to make the requested disclosure.
[7] Full, complete and accurate financial disclosure is a fundamental obligation of every party in proceedings such as this. It is automatic. Incremental disclosure is not full, complete and accurate financial disclosure. Disclosure motions should be unnecessary. Such motion cause delay. Such motions cause unnecessary expense. Further, failure to make or making only incomplete financial disclosure raises suspicion and causes such proceedings to become acrimonious, protracted and high conflict.
[8] Parties who fail to make full, complete and accurate financial disclosure, or worse who use this failure as a litigation tactic, must bear the consequences of their own actions.
[9] That applies to this case as the Respondent has demonstrated a wilful disregard of his disclosure obligations even when faced with court disclosure orders and the Respondent hid/failed to disclose the complete and accurate nature of is financial affairs in various corporations and policies at issue.
[10] I agree and accept that full indemnity costs should be awarded in this case against the Respondent.
[11] Malicious intent is not necessary to ground an order for full indemnity costs. Wilful and continued disregard of a party’s financial disclosure obligations despite a number of attendances in court and very late disclosure of significant financial information, is much more than enough to make a finding of bad faith and wilful disregard of a party’s obligation to justify a full indemnity cost award.
[12] Costs are awarded to the Applicant on a full indemnity basis.
Quantum
[13] Even where full indemnity costs are to be awarded, the court continues to have an obligation to ensure that the costs awarded were reasonably and justifiably incurred in the circumstances of the motion/hearing.
[14] I am not persuaded that the number of hours preparing for this motion were unreasonable. The facts were complex. The facts were changing because of the Respondent’s failure to disclose or incomplete disclosure (i.e. ownership of the policies).
[15] I now turn to the specific issues raised by the Respondent.
[16] I am not persuaded that Mr. Ashley’s hourly rate is excessive or unreasonable given his years at the bar and experience in family matters. There is no principled basis to discount his hourly rate. However, I do accept there is an issue regarding the discrepancy in the $310 and $350 hourly rate that is not explained.
[17] The time for the preparation of a factum was entirely appropriate. It does not lie on the Respondent to have caused the need for the motion and then say a factum was unnecessary.
[18] As for the Respondent’s submission that the Respondent should not pay for “research, drafting or preparing a factum” nor the need for the 14B motion dealing with service, these steps were necessary and reasonable and there is no principled basis to deny the recovery of these costs.
[19] Having considered the Bill of Costs and the submissions of both parties, costs of $20,000 all inclusive payable by the Respondent to the Applicant forthwith.
Released: November 16, 2022 RSJ Ricchetti
COURT FILE NO.: FS-22-0044844-0000 (Milton)
DATE: 2022 11 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nicole MATHESON
Applicant
--and –
Jeffrey Rice Holmes MATHESON
Respondent
COST ENDORSEMENT
RSJ Ricchetti
Released: November 16, 2022