Court File and Parties

COURT FILE NO.: FS-20-20794 DATE: 20220207 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kyle Sanvictores, Applicant AND: Nancy Sanvictores, Respondent

BEFORE: Pinto J.

COUNSEL: Lauri Daitchman, for the Applicant James B.C. Edney and Joseph Slavec, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

[1] I heard competing motions from the parties on September 16, 2021 and issued my Reasons for Decision on September 24, 2021: Sanvictores v. Sanvictores, 2021 ONSC 6355. The parties were unable to agree on costs and required this decision based on their written costs submissions.

[2] The applicant seeks $26,072.49 in costs based on his Bill of Costs on the basis that the respondent failed to accept any of his three Offers to Settle dated September 8, 13 and 15, 2021. The applicant argues that, had the respondent accepted some or all of these Offers to Settle, she would have fared better than the outcome of the motion.

[3] The respondent disagrees and argues that, notwithstanding my Reasons for Decision, she was the more successful party on the issue of interim support. The respondent seeks a decision that the costs of the motion be deferred and determined by the trial judge.

[4] The respondent concedes that the applicant was successful on his motion as it relates to AKA Creative Inc. With respect to financial disclosure, the respondent argues that, ultimately, there was only one item sought by the applicant in his Notice of Motion that the respondent was not willing to produce given that he could have obtained the requested information himself.

[5] The respondent argues that, while it is true that she did not accept the applicant's September 13, 2021 Offer to Settle, had it been accepted, it would have entailed the parties' selling/assigning their pre-construction property in Stouffville and giving both of them a share of the proceeds, an outcome that was not sought by the parties on the motion, and one that was not ordered by the court.

[6] In respect of the applicant's first and third Offers to Settle, the respondent argues that neither Offer contained an undertaking as to damages and given that the relief being sought was injunctive (regarding AKA), had the respondent accepted these Offers, she would have been substantially prejudiced. Additionally, the respondent submits that none of the applicant's Offers to Settle contained a proposal to pay support.

[7] The respondent argues that that she was relatively successful since I ordered the applicant to provide disclosure and ordered interim support based on reduced incomes attributed to each party. The respondent points out that the applicant's position was that he had no income to pay support, and that he was not obliged to pay anything towards the children's private school fees, but the applicant's position was rejected by the court.

[8] The respondent served two Offers to Settle dated September 14 and 15, 2021. She argues that while my ruling did not align with her Offers to Settle, her proposal with respect to interim support was not unreasonable compared to the applicant's "no support" position.

Analysis

[9] I begin by reiterating what I stated at paragraph 4 of my Reasons for Decision:

Let me also say that I do not consider this to be, despite my order, which grants most of the relief that the applicant seeks, and some of the relief that the respondent seeks, I do not consider this to be a case of mixed success. As I said, my order is premised on the idea that I don't think Ms. Sanvictores you've acted reasonably in terms of respecting the underlying ex-parte order. I'm basing that on the totality of the evidence that was before me, I'm basing that on the endorsements that have been previously issued, which we don't have time to go over all of that today, but that is what the court is required to do, which is to use its best judgment in the face of very contradictory evidence. I say that because, when we get to costs, I will not be accepting the proposition that there was mixed success here. I will accept that there was some success on your client's behalf in terms of interim child support but I mean, part of why that's the case is because I think Kyle has not really run this organization and it's clear that, even by your own client's admission, she was the sort of administrative financial piece, he was the designer of this, so if I have to divide the baby in half, I have to allow Kyle to let this operation continue, and I think that's the overall import of my order.

[10] I held in my Reasons for Decision that the overall import of my decision on the motion was to determine who, on an interim basis, should control AKA, and to compel the respondent to comply with a pre-existing judicial order. That a part of my decision involved rejecting the applicant's position on support is acknowledged.

[11] The applicant was successful in his motion with respect to: (a) requiring the respondent to comply with the December 18, 2020 order; (b) preventing the respondent from operating AKA; (c) requiring the respondent to return his and AKA's belongings and login details; and (d) requiring the respondent to provide disclosure.

[12] I recognize that that there was not a complete alignment between the applicant's Offers to Settle and the relief I ordered although I would say that the applicant's first Offer to Settle dated September 8, 2021 comes closer than the subsequent two offers.

[13] Costs are in my discretion. As set out in rule 24 of the Family Law Rules and in Mattina v. Mattina, 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes:

(a) To partially indemnify successful litigants;

(b) To encourage settlement;

(c) To discourage and sanction inappropriate behaviour by litigants; and

(d) To ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.

[14] In all the circumstances, I find that:

(a) Costs should not be deferred and determined by the trial judge. I read rule 24(10) of the Family Law Rules as encouraging judges to promptly make costs rulings after each step in a proceeding where they can. The motion here was a discrete step and the relatively successful party is entitled to be reimbursed and not have to wait to trial.

(b) Costs on a full indemnity basis are not warranted. While I was critical of the respondent's behaviour, as explained in my Reasons for Decision, I do not find that her conduct was so egregious to warrant an award of full indemnity costs, and I do not find that full indemnity costs are warranted on the basis that the respondent failed to accept the applicant's Offer(s) to Settle.

(c) The applicant's Bill of Costs of $26,072.49, overall, is not overstated. One measure of its reasonability is that, in the respondent's Bill of Costs, she indicates that her Full Recovery Costs were $33,222 (it appears that there was a typographical error whereby the subheadings for Partial and Full Recovery Basis in the Respondent's Bill of Costs were switched).

(d) Bearing in mind the factors identified in Rule 24(12) of the Family Law Rules, I find that the appropriate order of costs is $17,000 (all-in) based on:

$15,228.18 (66% of $23,073.00); plus

$ 1,979.66 (HST @ 13%)

$17,207.84 rounded down to $17,000.

[15] I have used the scale of 66%, rather than what I consider to be the norm of 60% for partial indemnity costs, as one component of the costs order is condemnatory of the respondent's conduct in this litigation in terms of her failing to adhere to the previous court order(s).

[16] The respondent shall pay the applicant $17,000 within 30 days of the release of this endorsement.

Pinto J.

Date: February 7, 2022