Court File and Parties

Court File No.: FC-20-670 Date: 2023/08/23 Ontario Superior Court of Justice

Between: Lenore Cork-Lemay, Applicant – and – Matthew Lemay, Respondent

Counsel: D. Larry Segal, for the Applicant Eric Letts, for the Respondent

Heard: In writing

Costs decision

Audet J.

Endorsement

[1] This 10-day trial focussed on parenting issues, but also required a decision on the issues of child support, spousal support and the equalization of the parties’ net family property. If the parties were unable to agree on costs, I invited them to provide me with written submissions, which both parties provided.

[2] Having considered those submissions, I order the Respondent father to pay costs in the amount of $80,000 (all inclusive), based on the following main reasons.

[3] The Applicant mother was mostly successful on all parenting issues. I imposed the school year and summer schedules that she was asking for, and while she was not fully successful on the issue of decision-making responsibility, she was awarded most of the responsibilities in that regard (including health and education).

[4] I fail to understand the father’s submission that he was the successful party on the issue of parenting, based on the fact that the mother sought a parenting schedule “placing the children with her for greater than 60% of the time”, and that in her January 13, 2023 Offer to Settle, she proposed “a 63/37 parenting schedule in her favour”. The parenting schedule sought by the mother in this trial (and which she obtained) was exactly the same as the one she was proposing in her Offer to Settle. The father, on the other hand, took the position at trial that the status quo (week-on, week-off) should remain in place.

[5] While I acknowledge that in his January 15, 2023 Offer to Settle, the father was prepared to agree with the parenting schedule proposed by the mother, the success of a party is established in relation to the position they took at trial, not what they offered to settle for. The content of offers to settle exchanged between the parties before the trial is to be considered as a separate factor in the cost analysis.

[6] The mother also established an unquestionable and strong entitlement to spousal support (something the father had no reason to dispute so ardently, in my view), although in the end I found that the father did not have a current ability to pay (based on the termination of his employment as a pilot, the details of which were only disclosed during the course of this trial). I did however preserve the mother’s right to claim spousal support in the future.

[7] I also concluded that the father owed the mother important child support arrears from January 2020 onwards.

[8] Finally, I agreed with the mother’s position that there was no equalization payment owing by either party (due in large part to the father’s failure to provide full and frank disclosure).

[9] Being the most successful party, the mother is presumed entitled to her partial indemnity costs.

[10] In my trial decision I found that the father had behaved unreasonably during the course of this litigation by failing to provide full and frank financial disclosure, and by wrongfully withholding the children in April 2020, which set the tone for the high conflict litigation that ensued. The father’s failure to provide full and frank disclosure, in particular, resulted in significantly increased legal costs for the mother who was forced to request multiple appearances before the case management judge to address the father’s failure to disclose and breaches of several court orders. It also resulted in a complete waste of time and resources which were dedicated to the issue of equalization – a claim which was ultimately dismissed.

[11] In addition, the father failed to provide timely disclosure of the fact that his employment as a pilot was terminated due to alleged medical issues, or any of the particulars that would have allowed the mother to properly prepare for trial (of particular relevance is the fact that the father provided absolutely no medical or other supporting evidence of his alleged disability). The father’s failure to provide full particulars and documents supporting his employment status change resulted in a significant waste of legal fees, court time and resources which were allocated on the issues of child and spousal support.

[12] For all these reasons, I am of the view that the father should be required to pay a much larger proportion of the mother’s costs than on a partial indemnity basis.

[13] The father’s failure to provide proper disclosure and to comply with previous court orders also resulted in multiple case/trial management conferences. At the end of the trial management conference held before Summers J. on January 3, 2023, she reserved costs to the trial judge. The father’s failure to disclose also forced the mother to bring a pre-trial motion precluding the father from advancing certain financial claims. She was successful in that pre-trial motion.

[14] Finally, as a result of the father’s wrongful withholding of the children in May 2020, the mother was required to bring an urgent motion which ultimately resolved on consent. Fortier J. who heard that urgent motion held that costs were to be in the cause.

[15] I find that the mother is entitled to her costs on a substantial indemnity basis for the January 3, 2023 trial management conference, the pre-trial motion and the urgent motion held in June 2020.

[16] The parties only made one formal Offer to Settle prior to the commencement of this trial.

[17] The mother’s Offer to Settle was served on January 13, 2023, days prior to the commencement of the trial. Although it was not as beneficial to the father as the order I made at trial in relation to decision-making responsibilities (in her offer the mother was proposing to have final decision-making responsibility on all issues related to the children’s care), it was significantly more beneficial to the father on financial issues than the order that I made. The parenting time schedule offered by the mother was exactly the same as the one I ultimately ordered. However, the mother’s offer was not severable.

[18] Although this offer does not meet the requirements of rule 18(14) of the Family Law Rules, O.Reg. 114/99 as am. so as to attract the cost consequences set out therein, its overall terms were much more beneficial or as beneficial to the father as the result he obtained at trial – with the sole exception that I granted the father some limited decision-making responsibilities. Surely, a two-week trial ought not have been held to preserve the father’s ability to share decision-making responsibilities in relation to dental care and extracurricular activities. The father’s failure to accept the mother’s January 13, 2023 Offer to Settle also supports an award of costs which is higher than partial indemnity costs for the trial itself.

[19] The Offer to Settle made by the father was only served on January 15, 2023, the day prior to the commencement of this trial. Although by then he was prepared to accept the mother’s proposed parenting schedule, he sought joint decision-making responsibility as well as a $19,000 equalization payment and no child support arrears. This offer was significantly less beneficial to the mother than the order I made at trial.

[20] The mother seeks costs in the amount of $204,057.96. This includes significant costs incurred for steps in the case not related to the three court appearances described above or the trial. Indeed, it includes all the mother’s costs incurred during the course of this entire litigation (since 2020), except for court appearances where costs were dealt with.

[21] I am not prepared to make an award of costs in relation to anything other than the January 3, 2023 trial management conference, the June 2020 urgent motion, the pre-trial motion and the trial itself (including trial preparation work). This is based on my conclusion that both parties behaved in ways which made this court proceeding a high conflict parenting litigation and the fact that neither party made a formal offer to settle until days before the trial was set to begin. Ultimately, much of the work done on this file before the trial (and for which no order as to costs was made) was necessary to assess the parties’ various claims.

[22] I find that Mr. Segal’s hourly rate is reasonable in light of his level of experience, and one which the father ought to have expected to pay if unsuccessful. I am of the view that the limited information provided by the father’s counsel in relation to the legal fees charged by him to the father over the course of this litigation is either incomplete or misleading. For instance, the father’s counsel states that he charged $7,550 for the urgent motion that took place in June 2020, but only $9,370 for his preparation for this 10-day trial, and $31,635 for the trial itself.

[23] Ultimately, I find that the mother is entitled to costs in the amount of $80,000 (all inclusive), itemized as follows:

• $3,500 for the urgent motion held on June 8, 2020. The costs of $10,170 claimed by the mother includes work related to the drafting of her application and related documents, as well as the costs related to the first case conference, all of which ought to be excluded. Ultimately, I find that the amount of $4,500 reflects a reasonable substantial indemnity cost award for an urgent motion related to parenting only.
• $1,500 for the January 3, 2023 trial management conference, which represents the mother’s full recovery costs.
• $25,000 for trial preparation. I find that the amount claimed for trial preparation ($68,930) is high. The amount I award for this step in the case represents reasonable partial indemnity costs for a ten-day trial preparation.
• $50,000 for the trial, pre-trial motion and cost submissions, which is close to full-indemnity costs.

Madam Justice Julie Audet Released: August 23, 2023