Court File and Parties

COURT FILE NO.: FC-21-477 DATE: 2023-05-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Sarah McGrath Applicant Patricia Lucas, for the Applicant

• and -

Matthew Clubb Respondent Self-Represented

THE HONOURABLE JUSTICE J. R. HENDERSON

Endorsement on Costs

[1] This is my decision regarding costs of the motions that were heard on December 6, 2022.

[2] There were four motions before the court on that day, namely the respondent’s motion for contempt #1, the respondent’s motion for contempt #2, the applicant’s motion for disclosure from the respondent, and the respondent’s motion to change the terms of the existing temporary parenting order.

[3] The respondent’s motion to change was adjourned to be heard at a later date. I will not deal with the costs of that motion in today’s decision.

[4] The applicant was completely successful in the three other motions. I dismissed the two contempt motions brought by the respondent, and I granted the relief sought by the applicant in her motion for disclosure.

[5] As the successful party, the applicant is presumptively entitled to an award of costs, pursuant to rule 24(1) of the Family Law Rules.

[6] The applicant seeks full indemnity costs from the respondent in the amount of approximately $17,000. The respondent requests his full indemnity costs payable by the applicant to the respondent. In the alternative, the respondent requests either a deferral of the applicant’s claim for costs, or a reduction in the amount claimed by the applicant.

[7] I find that the respondent is not entitled to an award of costs in his favour. The respondent’s submissions on this point are based upon allegations of bad faith, unreasonable behaviour by the applicant, and improper conduct by the applicant's lawyer. I find that there is no merit to any of these submissions. The respondent’s submissions on costs, in reality, amount to an attempt to relitigate the motions that were before the court, combined with comments as to the respondent’s general dislike for the applicant and her lawyer.

[8] I find that the respondent is unable to rebut the presumption set out in rule 24(1), and accordingly the applicant is entitled to a costs award.

[9] I also reject the respondent’s request to defer the costs of the disclosure motion until the fruits of the disclosure are known. I find that the applicant reasonably brought this disclosure motion because of the reluctance of the respondent to provide proper disclosure, and the applicant was successful on the motion.

[10] As to the scale of costs, I disagree with the applicant’s request for full indemnity costs. In the absence of an offer to settle that engages the rules, full indemnity costs should only be awarded where the conduct of the unsuccessful party has been so egregious as to require court sanction. The respondent has not engaged in such egregious conduct in this case.

[11] As to the offers to settle, I find that there are no offers that engage the rules, or can form the basis for an increased costs award. The offers referenced by the applicant in her submissions were offers of complete capitulation by the respondent. Such offers are not particularly relevant in a costs decision.

[12] Therefore, I find that the applicant is entitled to her costs on a partial indemnity scale.

[13] In fixing the quantum of costs I take into account that the two contempt motions were not routine. A finding of contempt against the applicant would have put the applicant at risk of a monetary fine and/or a jail term. Thus, it was important for the applicant and her lawyer to vigorously defend these two contempt motions. I also take into account the fact that the disclosure motion brought by the applicant was a fairly routine matter.

[14] Considering all of these factors, I fix the applicant’s costs at $8,000 plus HST of $1,040 for a total of $9,040. Therefore, I hereby order that the respondent pay the applicant’s costs in the amount of $9,040, payable within 90 days.

J. R. Henderson J. Released: May 1, 2023