Baker v. Baker, 2023 ONSC 4860

Court File and Parties

COURT FILE NO.: FS-21-00000084-0000 DATE: 2023/08/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMANDA CHRISTINA BAKER, Applicant AND: JOHN ALLAN BAKER, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Iain D.D. Sneddon and Katie Baker, for the Applicant Howard Wolch, for the Respondent

HEARD: In writing

Endorsement Regarding Costs

Introduction

1On July 10, 2023, I released an endorsement in relation to specified aspects of two motions brought by the Applicant herein; an endorsement now reported as Baker v. Baker, 2023 ONSC 4082 and 2023 CarswellOnt 10519. That endorsement addressed a number of substantive issues, including:

a. the propriety and/or admissibility of certain evidence tendered by the Respondent herein, in response to the motion for relief being sought by the Applicant;

b. whether the Respondent should be ordered to disclose and produce specified documents and information requested by the Applicant;

c. determination and ordering of appropriate child support and spousal support payments to be made by the Respondent on an interim interim basis; and

d. determination of whether, and to what extent, the Respondent should be ordered to pay requested amounts of money to the Applicant to cover part or all of the Applicant’s expenses of carrying on the case, (including fees to be charged by an expert retained by the Applicant in relation to valuation of the Respondent’s business interests and income for support purposes, and legal fees charged and to be charged by Applicant counsel), pursuant to Rule 24(18) of the Family Law Rules, O. Reg. 114/99, hereinafter referred to as “the Family Law Rules”.

2This endorsement should be read together with that earlier one, for a full appreciate and understanding of the context leading to this further decision.

3For present purposes, I will simply note at the outset that, because my earlier decision had been reserved, the parties were unable to make cost submissions having regard to the substantive outcome of the motion issues I was called upon to address. In the circumstances, (including the assertions being made by both parties that neither had any readily available funds to engage in this ongoing litigation), I urged the parties to resolve the associated cost issues without the need for further litigation, but set a timetable for the tendering of written cost submissions in the event the parties were unable to reach any agreement in that regard.

4Despite my exhortation that they reach such a negotiated agreement, the parties apparently were unable to resolve the aforesaid cost issues without incurring further legal expense, as I now have received written cost submissions tendered on behalf of each party. In particular:

a. on or about July 24, 2023, counsel for the Applicant delivered written cost submissions and a Bill of Costs on behalf of the Applicant;

b. on or about August 4, 2023, counsel for the Respondent delivered responding written cost submissions and a Bill of Costs on behalf of the Respondent; and

c. on or about August 14, 2023, counsel for the Applicant delivered reply written cost submissions on behalf of the Applicant.

5I now have had an opportunity to review and consider all of that material, (including the various documents incorporated therein), and the competing party positions regarding an appropriate cost disposition in relation to the motion proceedings before me.

Party Positions

6The Applicant’s position in relation to such costs may be summarized as follows:

a. While emphasizing that the Applicant arguably should be entitled to her “full indemnity costs as a result of the Respondent’s actions”, the Applicant seeks an order compelling the Respondent to pay her costs of the special appointment proceedings before me fixed in the all-inclusive amount of $50,000.00; an amount described in the Applicant’s written cost submissions as being “just over the partial indemnity rate of 55% of the fees and disbursements incurred by the Applicant in relation to this motion”, although I note again that there were in fact two motions brought by the Applicant, (as Applicant counsel notes elsewhere in the Applicant’s cost submissions), and approach this cost determination on that basis.

b. In support of the Applicant’s cost claim, the Bill of Costs tendered by counsel for the Applicant summarized the hourly rates of the five lawyers, three students and two clerks who worked on the matter, (rates which increased over the duration of the motion proceedings from the spring of 2022 to the winter of 2023), the number of hours each devoted to the matter, and the corresponding total of fees capable of being claimed on a “partial indemnity” basis using a rate of 55 percent, ($42,000.97), “substantial indemnity” basis using a rate of 82.5 percent, ($63.001.46), and “full indemnity” basis using a rate of 100 percent, ($76,365.40), with the Applicant making no cost claim in relation to any disbursements.

c. The aforesaid Bill of Costs was supported by a 41-page printout of docket entries, much of which was the subject of substantial redaction. However, time spent with a calculator generally confirmed my inference that the redactions related to time in respect of which no claim for costs was being made, (e.g., as opposed to redactions made for other purposes such as the shielding of more sensitive solicitor-client information), insofar as the sum of indicated time entries generally corresponded to the summary of time/hour indications set forth in the Applicant’s Bill of Costs.

d. Considerations emphasized and relied upon by counsel for the Applicant in that regard included the following:

i. It was said that the Applicant was “the successful party in virtually every meaningful aspect of the special appointment”; a submission more tempered in reply to suggest that “the Applicant was far more successful than the Respondent overall” in terms of “quantum of support, disclosure, money for counsel and his (sic) expert and striking pleadings (sic)”, such that the Applicant therefore had a presumptive entitlement to costs in that regard.

ii. In relation to each party’s behaviour, and the making of any written offers to settle:

1. The Applicant was said to have acted reasonably. In particular, it was said that the Respondent’s refusal to comply with his automatic financial disclosure obligations, and refusal to adopt any reasonable position in relation to the setting of his income and income of the Applicant for support determination purposes, made it necessary to bring the Applicant’s initial motion compelling such financial disclosure and securing appropriate child and spousal support for the time being.

2. It was acknowledged that the Applicant did not serve any offer to settle the motions in accordance with the Rules prior to the motions being heard, and that the offer the Applicant served on or about January 13, 2023, (described in the cost submissions of the Respondent as an offer to settle the entire dispute between the parties on a basis that included fixing the income of the respondent at a non-variable amount of $2,000,000 for the purposes of support calculations, child support in the amount of $29,000.00 per month, a combined lump sum payment of $12 million on account of spousal support and equalization, and no further disclosure), admittedly was “imperfect”. However, it was submitted that such imperfection, and the Applicant’s inability to make or consider any meaningful settlement offers, was attributable to the Respondent’s refusal to provide appropriate and required financial disclosure; e.g., so that the Applicant would have the benefit of her retained expert’s analysis of the Respondent’s financial affairs when formulating an appropriate offer to settle and/or responding to settlement offers made by the Respondent.

3. It was emphasized that the Respondent also failed to serve any offer to settle the motions prior to their being heard, (by which time the Applicant’s relevant costs already had been incurred), and that the substantive relief obtained by the Applicant exceeded that proposed in the offer to settle conveyed on behalf of the Respondent on March 2, 2023; i.e., an offer which proposed, inter alia, setting child support at $6,890.00 per month, (together with the Respondent’s commitment to pay 100% of qualifying extraordinary section 7 expenses – although I note, as I did in my earlier endorsement, that such expenses were not in dispute during the proceedings before me), the Respondent making a single lump sum payment of $100,000.00 in relation to interim spousal support, and the Respondent making specified disclosure falling short of that sought by the Applicant and ordered as per my earlier endorsement.

4. It was said that the Respondent has adopted unreasonable positions; e.g., with respect to such matters as his refusal to provide necessary financial disclosure or his appropriate income for support purposes, his contention that a $120,000.00 annual income should be imputed to the Applicant as a fair starting salary, and his curtailing the Applicant’s access to his credit cards both before and after the hearing before me, in alleged contravention of the provisions of the order made by Justice Nicholson on July 14, 2022. ¹

5. It was noted in the Applicant’s initial written cost submissions, (and not denied in the responding submissions filed on behalf of the Respondent), that the Respondent, as of July 24, 2023, also still had failed to pay any child or spousal support pursuant to the order I made on July 10, 2023, making his ordered obligations in that regard effective as of July 1, 2023.

iii. In relation to the time spent on the motions by each party and the corresponding legal fees incurred, including the number of lawyers and their respective rates:

1. As noted above, it was said that the time spent on the motions was necessarily incurred, given the unreasonable positions adopted by the Respondent, and the high degree of complexity associated with many of the issues relating to the Respondent’s financial affairs and his corresponding disclosure and support obligations.

2. It was emphasized that senior counsel delegated tasks appropriately to facilitate necessary legal work being completed at lower hourly rates where possible, thereby resulting in the number of lawyers, students and clerks involved in the matter. The suggestion that this increased the costs incurred by the Applicant was denied.

3. It was emphasized that the costs currently being sought by the Applicant included no claim for fees incurred in relation to the Applicant’s expert Mr Martindale, insofar as that expense effectively has been addressed by my earlier endorsement.

4. It was suggested that the time and expense devoted to the motions by the Respondent was comparable, taking into account:

a. that the total fees, disbursements and applicable taxes incurred by the Respondent in relation to the motions, (involving work done primarily by senior counsel Mr Wolch, but with additional contributions by one additional lawyer, one student and one law clerk), came to $47,471.24 on a “substantial indemnity” basis and $31,653.33 on a “partial indemnity” basis;

b. that the total fees, disbursements and applicable taxes incurred by the Respondent in relation to the motions actually is understated, insofar as it fails to include the time and expense devoted to the financial disclosure dispute prior to the Respondent’s retention of his current counsel, during which time Applicant counsel expended time and effort requesting and attempting to secure voluntary production of financial disclosure that repeatedly was refused; and

c. that counsel for the Applicant inherently was required to devote more time to the matters in dispute; e.g., insofar as “it is more expensive to request disclosure continuously than to ignore such requests, or deny them”, as the Respondent was said to have done.

iv. By way of additional considerations, it was emphasized that the Respondent has the ability to pay the costs now being sought by the Applicant, and a greater ability to pay than most family law litigants.

7The Respondent’s position in relation to such costs may be summarized as follows:

a. The Respondent primarily seeks an order compelling the Applicant to pay the Respondent costs fixed in the all-inclusive amount of $15,000.00. In the alternative, the Respondent requests an order declaring that the Applicant is not entitled to any costs of the proceedings before me.

b. Material filed in support of the Respondent’s position in that regard included:

i. a copy of the Offer to Settle made by the Applicant on January 13, 2023, described above;

ii. a copy of the Offer to Settle made by the Respondent on March 2, 2023, described above;

iii. copies of credit card statements, paid by the Respondent and indicating, inter alia, that the Applicant used the Respondent’s credit card to pay:

1. $33,326.83 to “RJS CHARTERED ACCOUNTING GODERICH ON” on August 25, 2022;

2. $18,474.31 to “COHEN HIGHLEY LAWYERS LONDON ON”, (the law firm representing the Applicant), on September 29, 2022;

3. a further $12,752.05 to “COHEN HIGHLEY LAWYERS LONDON ON” on November 2, 2022;

4. $5,000 to “DAVIS MARTINDALE LLP LONDON ON”, (the firm of Chartered Professional Accountants retained by the Applicant to provide an expert report in relation to the value of the Respondent’s business interests and the Respondent’s income for support purposes, as indicated in my earlier endorsement), on November 22, 2022; and

5. a further $7,735.42 to “COHEN HIGHLEY LAWYERS LONDON ON” on November 22, 2022.

iv. a Bill of Costs, (to some extent already described above, and supported by two pages of docket entries), indicating that the Respondent’s costs of the motions were $47,472.24 on a “substantial indemnity” basis and $31,653.33 on a “partial indemnity” basis.

c. Considerations emphasized and relied upon by counsel for the Respondent in support of the Respondent’s position on costs included the following:

i. It was emphasized that the Applicant did not make any offer to settle the motion; i.e., an indication of unreasonable behaviour.

ii. It was submitted that the only settlement offer made by the Applicant, (i.e., the offer conveyed on January 13, 2023), was “clearly not a bona fide offer”, (and therefore implicitly an offer made in bad faith), insofar as the “main thrust” of the offer was the proposed fixing of the Respondent’s annual income at the invariable amount of $2,000,000 for the purposes of support calculations; a suggestion apparently regarded by Respondent counsel as self-evidently inappropriate and indicative of bad faith. Moreover, the making of that offer, which included no proposed requirements for further disclosure to be made by the Respondent, was said to undermine the Applicant’s contention that she was unable to make settlement offers without such further disclosure.

iii. It was emphasized that, although the Respondent’s offer to settle admittedly was made after the motions were heard, the Respondent at least did make an offer to settle the issues raised by the motions and did so before the release of my decision. Moreover, while the proffered further disclosure contemplated by that offer fell short of that required by my order, it was said to be “certainly much more than the applicant was requesting under her offer”. On the whole, the outcome contemplated by the Respondent’s settlement offer was said to be “strikingly close to the final order of this Honourable Court”, thereby warranting an Order requiring the Applicant to pay a measure of costs, (e.g., $15,000.00), to the Respondent.

iv. It was submitted that the tendered credit card statements indicate that the Respondent already effectively had paid $77,288.61 towards the Applicant’s “legal bills and expert’s fees by January 2023”; an amount “less than the $125,000 ordered by this Honourable Court, but … obviously a very significant amount to be taken into account when evaluating the bona fides of the Respondent’s offer”.

v. It was said that no costs of the motions should be awarded to the Applicant “without giving credit for the full amount” of the $77,288.61 “taken by the Applicant” via the aforesaid charges made on the Respondent’s credit card, (paid by the Respondent), and the further $40,000.00 the Applicant was said to have taken from the Respondent’s unspecified “account” ², “in light of these funds already paid to the applicant’s lawyers”.

vi. It was suggested that the “significantly higher charges” levied by the Applicant’s lawyers in relation to the motions was a product of the “number of lawyers working on the file”, and that the Applicant’s request for an order requiring payment of $50,000.00 in costs was “clearly far too high” in any event.

8Before turning to assessment of those completing positions, I pause to note some of the relevant legislative provisions and general principles which govern such cost determinations.

Legislation and General Principles

9Costs of such family law litigation generally are governed by Rule 24 of the Family Law Rules, which reads in part as follows:

24. SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS – (1) There is a presumption that a successful party is entitled to the costs of a motion …

(4) SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY – Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or party of the unsuccessful party’s costs.

(5) DECISION ON REASONABLENESS – In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

(6) DIVIDED SUCCESS – If success in a step in a case is divided, the court may apportion costs as appropriate. …

(8) BAD FAITH – If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. ³ …

(12) SETTING COSTS AMOUNTS – In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour;

(ii) the time spent by each party;

(iii) any written offers to settle, including offers that do not meet the requirements of Rule 18; ⁴

(iv) any legal fees, including the number of lawyers and their rates;

(v) any expert witness fees, including the number of experts and their rates;

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

(12.1) SUPPORTING MATERIALS – Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. …

10General principles established by courts approaching and applying those legislated provisions include the following:

a. It is not true to say that costs in family proceedings generally should approach full recovery. Nor are judges deciding matters governed by the Family Law Rules constrained by the “partial indemnity” and “substantial indemnity” scales of costs frequently applied in relation to litigation governed by the Rules of Civil Procedure. To the contrary, no cost scales are mentioned in the Family Law Rules, and those rules provide that a judge may increase or decrease what might otherwise be an appropriate quantum of costs, depending on factors such as the conduct of the parties and the presence or absence of offers to settle. The Family Law Rules demand flexibility in examining the list of factors set forth in Rule 24(11), without any assumptions about categories of costs and the court fixing costs at some figure between a nominal amount and full recovery, bearing in mind that modern cost rules are designed to foster three fundamental purposes: partial indemnification of successful litigants for the cost of litigation; encouraging settlements; and discouraging and sanctioning inappropriate behaviour by litigants. Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs to be awarded. At the end of the day, cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party or parties. ⁵

b. It is an error to refuse to award costs to a successful party where the successful party has not behaved unreasonably during the case or success was not divided. ⁶

c. “Divided success” does not necessarily mean “equal success”, and “some success” may not be enough to have an impact on the appropriate cost determination. Most family law cases involve multiple issues, and not all issues are equally important, equally time-consuming or equally expensive to determine. Moreover, while comparative success can be assessed in relation to specific issues, it also can be assessed globally in relation to the whole of a case. ⁷

d. Consideration of settlement offers is relevant not only to possible determination of relative success, but also to an assessment of whether parties have behaved reasonably. In particular, in looking at reasonableness and unreasonableness, it is necessary to consider any offers to settle which either party has or has not made. It normally is considered unreasonable behaviour for a party not to make a settlement offer. ⁸

e. In considering party behaviour in the determination of cost awards, courts also have emphasized, (as they have in the context of substantive determinations), the fundamental importance of parties making honest and complete financial disclosure. Where a party fails to comply with his or her “cornerstone” obligations in that regard, effectively forcing an opposing party to embark on litigation to obtain such disclosure, such inadequate financial disclosure usually entails cost sanctions, (e.g., awards sometimes approaching full recovery, even in cases falling short of “bad faith”), as an appropriate means of discouraging such behaviour. ⁹

f. Although a comparison of the time devoted to a matter by each party forms part of the inquiry into reasonableness of the amount claimed, it should be remembered that opposing counsel are not expected or required to spend the same amount of time on a case, that the determination of costs is not a purely mathematical exercise, and that the overriding principle is reasonableness. ¹⁰

g. The financial means of the unsuccessful party may be a relevant matter for consideration in the exercise of a court’s discretion regarding costs in the family law context. In particular, in certain cases it may be appropriate, in the exercise of the court’s overriding discretion, to reduce the quantum of costs that a party will have to pay because of their financial condition. However, the principle does not apply in reverse. In particular, there is no principle relating to costs that requires wealthier individuals to pay more for costs for the same step in a proceeding than less wealthy ones. ¹¹

11With all of the above in mind, I turn to assessment of the party’s competing cost submissions, and determination of an appropriate cost award in relation to the proceedings before me.

Analysis

12I begin by indicating my view that the Applicant was the more successful party in relation to the proceedings before me. In that regard:

a. I am not unmindful of the reality that the Applicant was not entirely successful, in terms of the relief she sought during the motion proceedings before me. Without limiting the generality of the foregoing:

i. During the relevant special appointment hearing, Applicant counsel figuratively “swung for the fences” with the outcome falling far short of that being requested in terms of the annual income he sought to attribute to the Respondent for support purposes, and corresponding child support and spousal support determinations; e.g., initially suggesting that I accept the Respondent’s 2021 Line 15000 income of $20,923,798.00 as the base annual income figure for support determinations, with an alternative proposal that the Respondent’s annual income for such determinations should be set at $3,652,613, being an average of the Respondent’s Line 15000 annual income indications over the previous 10 years. I instead found, for the reasons outlined in my earlier endorsement, that an appropriate annual Respondent income for support purposes was $485,825; in large measure because I found the Respondent’s Line 15000 income for 2021 to be anomalous, despite Applicant counsel’s submissions to the contrary. My corresponding determinations of appropriate interim interim child and spousal support accordingly were far, far below the amounts suggested by Applicant counsel during the special appointment hearing. In particular:

1. the amount of monthly interim interim child support I ordered was a mere 2.35 percent of the amount requested by Applicant counsel in his primary submission, and just 13.38 percent of the amount requested by Applicant counsel as an alternative “fallback” position;

2. the amount of monthly interim interim spousal support I ordered was a mere 1.81 to 1.94 percent of the amounts requested by Applicant counsel in his primary submission, and just 10.54 to 11.35 percent of the amounts requested by Applicant counsel as an alternative “fallback” position.

ii. For the reasons outlined in my earlier endorsement, the relief obtained by the Applicant in relation to her request for the Respondent’s payment of expenses totalling $450,000 pursuant to Rule 24(18) of the Family Law Rules, (to address fees charged by the Applicant’s expert and by the Applicant’s lawyers), was only half that amount; i.e., the $225,000 total I ordered to be paid in that regard.

b. In my view, however, such considerations do not detract meaningfully from the reality that the Applicant was clearly the more successful party at trial. Without limiting the generality of the foregoing:

i. As noted in my earlier endorsement, and as emphasized by counsel for the Respondent, the Applicant’s formal position going into the hearing before me, indicated in the Applicant’s original notice of motion prayer for relief, suggested attribution of an annual income to the Respondent of $437,098.67 for support purposes, in turn suggesting monthly child support payments in the amount of $6,890.00 and monthly spousal support payments in the range of $6,658 to $8,548; a suggested outcome below the relief actually obtained via my substantive order. For the reasons also outlined in my earlier endorsement, the more exorbitant requests made by Applicant counsel during the course of oral submissions appeared to reflect somewhat “eleventh hour” adjustments, not reflected in any of the Applicant’s written material and not conveyed in advance to Respondent counsel or the court. At the end of the day, the relief obtained by the Applicant in relation to child support and spousal support exceeded her formal requests, such that the Applicant was successful in that regard. I think it also important to note that, based on the material before me, no indication whatsoever of an appropriate annual income of the Respondent for support purposes, or corresponding indications of appropriate monthly child and/or spousal support, emanated from the Respondent until Respondent counsel made submissions in that regard somewhat “on the fly” during the course of the special appointment hearing before me. In other words, the Applicant was obliged to take the Respondent to a special appointment hearing of a formal motion to obtain determination of an appropriate Respondent income for support purposes and the corresponding quantification of appropriate interim interim child and spousal support obligations. In my view, to the extent the Applicant obtained such relief, she also was the successful party in that regard.

ii. Although the Applicant obtained relief pursuant to Rule 24(18) of the Family Law Rules that was only 50 percent of the relief being sought in that regard, (i.e., a total of $225,000 rather than $450,000), it should be remembered that the Respondent’s contention throughout the motion proceedings was that the Applicant should receive nothing whatsoever pursuant to Rule 24(18) of the Family Law Rules. In my view, the final outcome in that regard should be regarded as success for the Applicant.

iii. The Applicant also was entirely successful in relation to a range of other primary and incidental issues, including the following:

1. For the reasons outlined in my earlier endorsement, the Applicant was entirely successful in relation to her second motion, which sought to strike inadmissible and/or otherwise inappropriate evidence tendered by the Respondent.

2. The Applicant was entirely successful in relation to all of the disclosure and production aspects of her original motion.

3. The Applicant was entirely successful in opposing the Respondent’s submission that income, (at a level of $120,000 or otherwise), should be imputed to the Applicant for the purposes of support calculations, at least for the time being.

4. The Applicant similarly was successful in opposing the Respondent’s submission that the Applicant had a new partner making financial contributions to support of the children and the Applicant.

5. The Applicant also succeeded in overcoming the Respondent’s implicit and/or overt contentions that he lacked access to funds and/or financing as and when needed to address his ordered support and expense contribution payments.

iv. In my view, proper characterization of the Applicant as the successful party on the motions is not affected by the settlement offers described above. Without limiting the generality of the foregoing:

1. As noted above, the Applicant’s only settlement offer addressed proposed settlement of the entire dispute between the parties, and not resolution of the isolated motion issues I was called upon to decide. In my view, the considerations which factor into making a global settlement offer inherently are not necessarily the same as those which factor into the making an offer to settle particular issues, and it accordingly is not appropriate to consider components of the former as benchmarks for measuring success or failure in relation to the latter.

2. While I also have regard to the settlement offer made by the Respondent, in my view it also would not be appropriate to use the components of that settlement offer as any kind of meaningful benchmark for assessing reasonable behaviour or measuring success or failure in relation to the motion proceedings before me; e.g., in accordance with Respondent counsel’s submission that the outcome proposed by the Respondent’s settlement offer came “strikingly close” to the relief granted by my order. In that regard:

a. While the offer to settle made by the Respondent specifically relates to the motion issues I was to decide, it must be remembered that the Respondent made that settlement offer several weeks after argument of the motion before me, and therefore with the benefit of hindsight gained by the numerous interactive questions and comments I made during the course of the extended special appointment hearing.

b. A settlement offer made in advance of such a hearing carries weight in relation to cost determinations as an indication of which party may have adopted a more reasonable position prior to a matter being put before the court, and/or which party may have acted unreasonably by forcing the matter on to a formal hearing that otherwise might have been avoided.

c. In my view, however, that rationale for using settlement offers as a benchmark for measuring reasonable behaviour and success on a motion or motions falls away when the particular offer in question is made only after all costs associated with the motion proceedings have been incurred, and after the party making the offer effectively has received meaningful indications from the presiding motions judge as to how the matter is likely to be decided when a reserved decision is formally released. Punters generally are not rewarded for predicting the outcome of a sports match shortly before the final whistle blows, or the outcome of a derby as horses bear down on a finish line in the final stretch. I think a similar approach should be adopted in the present circumstances, in relation to that particular settlement offer made by the Respondent.

d. In any event, I also do not regard the outcome proposed by the Respondent’s settlement offer as coming “strikingly close” to the substantive relief I ordered. Without limiting the generality of the foregoing:

i. While the ongoing monthly child support I ordered was “only” $317.00 more than that contemplated by the Respondent’s settlement offer, the lump sum payment of $100,000 for spousal support proposed by the Respondent was tantamount to approximately 11 months of the ongoing monthly spousal support of $9,023 I ordered, after which spousal support presumably would come to an end if the Respondent’s offer had been accepted, despite this litigation showing every indication of being highly contentious and probably taking longer than 11 months to reach a determination by what currently seems to be an inevitable trial. Moreover, pursuant to the terms of the Respondent’s offer, the proposed support would not even begin for a period of seven months.

ii. In addition to those shortcomings, the Respondent’s offer to settle also proposed further disclosure and production falling short of what I ordered, and made no provision whatsoever for the Respondent’s payment of expenses sought by the Applicant pursuant to Rule 24(18) of the Family Law Rules, in respect of which I granted $225,000 worth of relief.

c. As the successful party, the Applicant is presumptively entitled to costs associated with the two motions pursuant to Rule 24(1) of the Family Law Rules. Moreover, as noted above, in such circumstances it would be an error to refuse the Respondent an award of costs unless the Applicant has behaved unreasonably or success was divided. For the reasons outlined above:

i. I do not feel success in this instance was “divided” in any meaningful way; and

ii. to the contrary, in my view the Applicant should be regarded as the successful party in relation to all of the motion issues I was asked to decide.

13As to the behaviour of the parties:

a. In my view, neither party’s behaviour crossed the threshold, outlined in the authorities noted above ¹², for a finding of “bad faith” conduct; i.e., as opposed to conduct that was merely unreasonable, or which reflected bad judgment and/or negligence. Without limiting the generality of the foregoing:

i. I think nothing in the material before me rises to the level of indicating that either party was engaged in conscious and deliberate wrongdoing motivated by dishonest purpose, moral obliquity, furtive design or ill will.

ii. The only suggestion to the contrary in that regard, (and a somewhat indirect one at that), stems from a comment in the Respondent’s written cost submissions that the Applications offer to settle was “clearly not a bona fide offer”, or was lacking in “bona fides”. Setting aside the Latin and focusing on the relevant English translations, in my view a suggestion that an offer was not made “in good faith”, or was lacking in “good faith”, obviously suggests by implication that it was made in bad faith.

iii. The stated basis for that implicit if not explicit accusation of bad faith was Respondent counsel’s submission that an offer to settle contemplating an invariable Respondent income of $2 million for support calculation purposes, and a lump sum payment of $12 million to resolve all spousal support and equalization claims made by the Applicant, was not just clearly unreasonable on its face, but also something that effectively contradicts the Applicant’s current assertion that she was unable to make or assess settlement offers without the disclosure and production sought on her motion. I disagree with those suggestions. Without limiting the generality of the foregoing:

1. For the reasons outlined in my earlier endorsement, the Respondent clearly has failed to satisfy his automatic financial disclosure obligations, and his done so in a very substantial and significant manner in circumstances where the potential financial stakes are extraordinarily high.

2. In such circumstances, I do not think it lies in the mouth of the Respondent to say that the Applicant’s settlement proposals are self-evidently too high. His conduct, in failing to make proper and timely financial disclosure, has deprived both the Applicant and the court of the full financial disclosure required to make such assessments in an accurate and reliable manner.

3. Until such time as the Respondent has complied with his financial disclosure obligations, I do not think the Applicant reasonably can be faulted for erring on the side of caution in the making of settlement offers; i.e., by contemplating and proposing a resolution that involves and/or would involve financial payments that may seem extraordinarily high in comparison to most of the other family law cases addressed by this court, but which also effectively cover off the possibility of the Applicant settling her claims for too little, in comparison to what she should and would have demanded if all the relevant underlying financial information had been properly disclosed and analysed by her retained expert before it was then also considered by her counsel.

b. As for other behaviour of the Applicant:

i. She admittedly did not make any offer to settle in relation to the motion issues I was called upon to decide, either before or after the special appointment hearing before me. While this normally would be regarded as unreasonable behaviour, I do not think it should be regarded in that way in the particular circumstances of this case, for reasons similar to those just provided as to why I do not regard the Applicant’s offer to settle the entire dispute as having been made in bad faith. In particular, I accept Applicant counsel’s submission that, when placed in a situation of inadequate information owing to an opposing party’s failure to provide complete and timely financial disclosure as required by the Family Law Rules, a family law litigant makes settlement offers and/or considers acceptance of received settlement offers at his or her considerable peril. In my view, that is especially the case in a situation such as this where the underlying income and asset figures are extraordinarily high, such that proper financial disclosure and corresponding expert analysis might suggest a wide variation in just and appropriate outcomes.

ii. I nevertheless do think it was unreasonable for the Applicant, through her counsel, to refrain from giving proper and accurate advance indications of the child and spousal support relief that actually would be sought during the relevant special appointment hearing, and to request such extraordinary levels of child and spousal support on an interim interim basis, when:

1. professional courtesy, and the entire tenor of our current approach to litigation now reflected in the Family Law Rules, clearly frowns upon litigation by ambush;

2. the underlying finances of the Respondent were clearly uncertain, and something requiring both further disclosure and expert analysis for the reasons put forth by the Applicant herself, obviously suggesting that the immediate focus should have been upon determination of without prejudice arrangements sufficient to address the situation in the meantime; and

3. an undeniable reality, in my view, that the levels of interim interim without prejudice child support and spousal support requested by Applicant counsel during the special appointment hearing were far and away in excess of any financial support the parties’ children and the Applicant realistically and/or reasonably might need while continuing to reside in Huron County prior to a final determination of such issues, (with appropriate retroactive and prospective adjustments), once there has been proper financial disclosure and analysis and further court determinations in that regard if and as necessary.

iii. I also find it troubling that the Applicant apparently used the credit card facility arrangement described above, (initially put in place informally, but subsequently incorporated into the Order made by Justice Nicholson), to secure what arguably may be regarded as the Respondent’s payment of expenses in the manner contemplated by Rule 24(18) of the Family Law Rules before any such extraordinary relief had been considered and granted by the court. In that regard:

1. In my view, there can be no real dispute that the relevant credit card facility, (supplemented by a line of credit arrangement), was put in place as a stop-gap means of ensuring some measure of financial support by the Respondent to the parties’ children and the Applicant until the issues of child support and spousal support could be successfully negotiated or formally addressed by the court in a more meaningful way. In particular, I think that was made clear by the provisions of Justice Nicholson’s order that the Applicant would be permitted continued use of the Respondent’s credit cards and overdraft line of credit until the issues of child support and spousal support were determined by written party consent or by way of a further court order.

2. In my view, the very existence of Rule 24(18) of the Family Law Rules makes it clear that money needed “to cover part or all of the expenses of carrying on [a] case, including a lawyer’s fees”, and/or an expert specifically retained to provide an expert opinion in relation to such a case, is not generally regarded as a component of child and/or spousal support. To the contrary, the possibility of an opposing family law litigant having to pay such additional expenses is addressed by the rules as something separate and distinct from a family law litigant’s obligation to pay child and/or spousal support.

3. The material before me, (and the Respondent’s tendered credit card statements in particular), nevertheless make it clear that the Applicant used the above credit card facility for that collateral and unintended purpose, at least in relation to the numerous payments made to the law firm representing the Applicant, and the payment made to Davis Martindale LLP -- insofar as Ron Martindale of that accounting firm unquestionably has been retained to provide the Applicant with an expert opinion in relation to this litigation. (I expressly make no ruling as to whether or not that was the case in relation to the $33,326.83 sum paid to “RJS Chartered Accounting” in Goderich, Ontario. There was and is no evidence before me to indicate why that payment was made, let alone any evidence to suggest that the Applicant retained or used the services of that accounting firm in relation to this litigation.) To that extent, at least, it seems reasonably clear that the Applicant abused the aforesaid credit card arrangement.

4. While that abuse of the credit card facility or arrangement was not addressed in the Applicant’s written reply cost submissions, I think it reasonable to infer, (e.g., having regard to the other evidence I received indicating the Respondent’s lack of income from any other source, and lack of liquid assets), that the Applicant felt obliged to use the credit card facility in the above manner because there appeared to be no other way of bringing her claims before the court and thereby obtain access to justice. That may or may not have been the case. In such circumstances, however, I think the more reasonable course of action would have been an initial motion, brought on an urgent and expedited basis, to have the Applicant’s professed Rule 24(18) needs addressed as a discrete issue, and at least to some extent, before proceeding further. Resort to self help, and the abuse of such a credit card arrangement incorporated into a court order for a specified limited purpose, obviously are things that need to be discouraged.

c. As for the behaviour of the Respondent:

i. For the reasons outlined in my endorsement and herein, I think it was unreasonable of the Respondent to refrain from compliance with his automatic and fundamentally important or “bedrock” obligations to make complete and honest financial disclosure. In my view, that failure obviously has delayed the progress of this litigation in a substantial way, and led to a wasteful expenditure of time and resources addressing that issue. As indicated above, our courts use cost awards to discourage such behaviour.

ii. While the presented evidence and submissions made it clear that the Respondent has never denied his obligation to provide child support, and that the Respondent was providing a measure of support through the credit card and line of credit arrangements that initially were informal but became embodied in the Order made by Justice Nicholson, I also think it was unreasonable for the Respondent to delay indication of his position regarding his appropriate level of income for support calculation purposes, and his suggested level of appropriate child support, until the special appointment hearing of the Applicant’s motions. In the result, the Applicant was forced to bring her initial motion to place those matters formally before the court, simply to obtain the Respondent’s formal position in that regard. In my view, that too was unreasonable behaviour on the part of the Respondent.

iii. I also think it inappropriate, improper and therefore unreasonable that the Respondent admittedly and unilaterally has terminated the credit card arrangement by which he effectively was paying a measure of support prior to the special appointment hearing before me, and prior to the making of my order. In that regard:

1. For the reasons outlined above, I appreciate that the Respondent had legitimate concerns about that credit card facility being abused by the Applicant; e.g., insofar as the Applicant apparently began using – and therefore abusing -- the Respondent’s credit card for purposes beyond expenditures normally associated with child and/or spousal support, and to secure, in effect, relief that instead could and should have been sought pursuant to Rule 24(18) of the Family Law Rules.

2. Having said that, the Respondent similarly was not entitled to engage in self-help; e.g., by the unilateral and complete termination of that credit card arrangement. Indeed, without formally deciding the matter, the Respondent arguably has committed contempt of court by unilaterally taking that step. In particular:

a. The court order made by Justice Nicholson seems to state clearly and unequivocally what was to be done in relation to that credit card arrangement. In particular, the Respondent was to permit the Applicant’s continued use of that facility until the child and spousal support issues had been determined by written party consent or by way of a further court order.

b. It seems entirely unrealistic to think or suggest that the Respondent did not have actual knowledge of the court order made by Justice Nicholson, having regard to the highly contentious nature of the litigation and the proceedings before me. Indeed, repeated reference to Justice Nicholson’s order has been made in the material filed and submissions tendered on behalf of the Respondent.

c. The Respondent’s offer to settle expressly indicates that the Respondent deliberately “cancelled the credit card”. In the circumstances, the Respondent intentionally did an act which Justice Nicholson’s order seems to prohibit, or intentionally failed to do an act that the order compelled, by preventing the Applicant’s continued use of that credit card until the issue of child and spousal support were determined by written party consent or by way of a further court order.

d. In the circumstances, (and again, without making any formal ruling in relation to such matters), the three essential elements of civil contempt arguably are capable of being established beyond a reasonable doubt, rendering the Respondent liable to a finding of contempt subject to exercise of the court’s residual discretion in that regard. ¹³

e. If the Respondent had concerns about continued provision of the aforesaid credit card facility to the Applicant, the proper course of action was to bring such concerns before the court and request an appropriate formal variation of Justice Nicholson’s order. It was not to engage in self-help, and arguable contempt of court, by unilateral termination of the relevant credit card. Such unreasonable and arguably unlawful behaviour also clearly needs to be discouraged.

iv. In my view, the Respondent’s apparent failure to make any child support or spousal support payments pursuant to my substantive order by July 24, 2023, notwithstanding my express indication that my order in that regard was to be effective as of July 1, 2023, unfortunately provides further evidence of the Respondent adopting an unreasonable approach in relation to the support issues arising from the parties’ separation.

d. As for the time spent on the matter by each party and the legal fees incurred by each, including the number of lawyers involved and their rates:

i. The hourly rates indicated in each party’s Bill of Costs seem reasonable to me, having regard to the indicated levels of qualification and experience of those who devoted time to the matter.

ii. In my view, and subject to the express qualifications and caveats that follow, the amount of time devoted to the matter by each side also generally was reasonable, having regard to the following considerations in particular:

1. For reasons already noted, it was necessary for the Applicant to bring her motions to address the issues I was called upon to decide. The Respondent’s refusal to comply with his automatic financial disclosure obligations, indicate a suggested level of annual Respondent income for support calculation purposes, or provide any interim contribution towards payment of the Applicant’s litigation expenses despite the obvious extreme imbalance in party resources, as well as the Respondent’s filing of inadmissible and/or inappropriate evidence, effectively left the Applicant with no choice but to bring those issues before the court.

2. As reflected in my earlier endorsement, the matters I was called upon to address involved a large number of primary and subsidiary issues, including a number of considerations not frequently addressed by the court except in cases involving unusually high levels of income and assets, and/or sophisticated and complex financial arrangements. Based on my experience at the bench, routinely dealing with family law matters, the issues addressed by the motion proceedings before me were unusually complex and time-consuming.

3. While the Applicant incurred more litigation expense than the Respondent, I do not find that surprising or inappropriate in the particular circumstances of this case. As noted above, equal time commitment in legal preparation is neither expected nor required, and the initial bringing of motions and presentation of necessary context almost invariably requires more time than it takes to respond. It also seems reasonably clear that the law firm representing the Applicant has indeed been addressing the issues addressed by the motion proceedings before me longer than the law firm now representing the Respondent. Nor did the Respondent prepare any formal response to the Applicant’s second motion.

4. Given the unusual “high stakes” involved, (i.e., because of the unusually high levels of underlying income and assets), I also regard the time devoted to the matter as reasonably proportionate.

iii. I nevertheless do have some concerns with “time spent” indications set forth in the Bill of Costs submitted by Applicant counsel. In that regard:

1. I generally take no issue with multiple lawyers working on a particular matter. To the contrary, a “team” approach is appropriate and to be commended in circumstances where the general goal of such an approach is, (as it apparently was here), delegation of legal work to a level where that work can be done at the lowest possible hourly rate. Such an approach is beneficial to all parties, including opposing litigants who may be obliged to pay adverse cost awards. Having said that:

a. In my view, such a team approach invariably entails some degree of duplicated effort, if only because members of such a team inevitably must spend time explaining or learning aspects of the matter already known by others. In my view, some allowance for such duplication of effort is appropriate in such circumstances.

b. In this particular case, I also was struck by the fact that work was delegated to two junior lawyers of similar experience and similar if not identical hourly rates, and a third junior lawyer with only slightly less experience and a slightly lower hourly rate. In my view, the involvement of that greater number of lawyers accordingly cannot be explained simply by delegation of work to those capable of doing it at the lowest hourly rate, and gives rise to enhanced concern about the invariable duplication of effort, (noted in the preceding sub-paragraph), inherent in having multiple lawyers work on a matter.

2. I am mindful of the reality that I was not called upon to address all aspects of the first motion brought by the Applicant. In particular, as noted in my earlier endorsement, in accordance with the directions made by Justice Heeney at the Case Conference held on November 30, 2022, I was called upon to address “primarily” the disclosure issues, and “secondarily” the support issues. However, other issues raised by the Applicant’s original motion, and parenting time issues in particular, were to be left for another day. In my view, all of that calls for additional allowances to be made for the fact that the Applicant should not be compensated in the current context for:

a. costs incurred in preparation of the aspects of the Applicant’s original motion that have yet to be argued; and

b. further costs incurred in relation to the preparation of additional material and submissions relating to parenting time issues for the special appointment hearing before me, (despite the clear direction of Justice Heeney that such matters were not to be argued during that special appointment hearing), including time spent on the advisability of an assessment focused on addressing such matters, and the Applicant’s desire for a “right of first refusal” in relation to parenting time with the children if the Respondent’s work and travel commitments otherwise would require him to leave the children in the care of others.

e. I already have addressed the written offers to settle exchanged between the parties.

f. As for consideration of “any expert witness fees, including the number of experts and their rates”, I already have noted that the Applicant, in the context of this cost determination exercise, seeks nothing in relation to expert witness fees as her requests in that regard already have been addressed by my earlier endorsement. For the sake of completeness, I note that the Bill of Costs tendered by the Respondent similarly included no claim for costs in relation to expert witness fees.

g. In relation to “any other expenses properly paid or payable”, and “any other relevant matter”, I also have considered the Respondent’s contention that there should not be any costs awarded to the Applicant in the current context “without giving full credit for the full amount” of the specified credit card payments made to the law firm representing the Applicant, (i.e., $18,474.31 plus $12,752.05 plus $7,735.42), to Davis Martindale LLP, (i.e., $5,000.00), and to RJS Chartered Accounting, (i.e., $33,326.83), and a further $40,000 said to have been taken by the Applicant from an account belonging to the Respondent. In that regard:

i. I think there is a danger here of inappropriate conflation of the substantive issues I addressed in relation to the Applicant’s motions and the cost issues presently being decided, particularly insofar as the relief requested and granted pursuant to Rule 24(18) of the Family Law Rules is concerned. In that regard:

1. The relief requested and granted pursuant to Rule 24(18) was to “level the playing field”, (at least to some extent), in relation to the availability of financial resources independently available to the Applicant to conduct appropriate investigations and analysis, initiate and pursue necessary interim and interlocutory motions, and generally prepare the matter for trial, without necessary dependence on the potential for inherently delayed and usually only partial recovery of associated expense via adverse cost awards. Litigants whose financial resources are subject to such limitations are disadvantaged, and all too frequently doomed to failure, in a legal world where lawyers and litigation experts frequently require advance or contemporary payment of fees for services provided or to be provided.

2. The relief requested and granted pursuant to Rule 24(18) of the Family Law Rules in this case was not intended to create any form of notional “credit” effectively capable of being utilized by the Respondent to satisfy any order, that might be made in the future course of the litigation, requiring the Respondent to pay adverse costs to the Applicant. Such an approach, whether direct or indirect, obviously would permit the Respondent to erode and progressively eliminate the financial resource the Rule 24(18) relief was designed to confer on the Applicant, and the extent to which the figurative “playing field” was intended to be levelled.

3. In short, the Respondent’s obligation to pay the amounts he was ordered to pay pursuant to Rule 24(18) of the Family Law Rules exists completely separate and apart from the additional costs he may be ordered to pay via the adverse cost award I will be making in favour of the Applicant, and any further adverse cost award he may be obliged to pay in the future.

ii. In my view, the Respondent’s arguments concerning the relevant amounts charged to his credit card by the Applicant, and/or the further $40,000 said to have been taken by the Applicant from the Respondent’s account, accordingly have no relevance to or bearing on the cost issues I currently am deciding, except to the extent they constitute unreasonable behaviour on the part of the Applicant for the reasons I already have addressed. To be more precise, the Respondent’s arguments concerning such credit card charges or other amounts supposedly taken from one of the Respondent’s accounts by the Applicant do not create, as suggested in the Respondent’s written cost submissions:

1. any kind of numerical dollar credit that must be taken into account and exceeded before the Respondent can be ordered to pay the Applicant a further amount by way of an adverse cost award made in the present context; or

2. any entitlement on the part of the Respondent to be “repaid”, through the guise of a cost award made in favour of the Respondent, any numerical difference between the costs notionally awarded to the Applicant in the current context and the possibly greater sums the Applicant is said to have taken from the Respondent pursuant to the specified credit card charges and supposed taking of $40,000 from one of the Respondent’s accounts.

iii. By way of an express temporary digression from my determination of an appropriate cost award to be made to the Applicant in the current context in relation to the motion proceedings before me, and an effort to minimize the potential for further litigation between the parties relating to the specified credit card charges and alleged removal of $40,000 from an unspecified account of the Respondent, I nevertheless offer the following observations and remarks:

1. In my view, there is simply no proper evidentiary basis currently before the court to support the Respondent’s contentions:

a. that the Applicant took $40,000 from one of the Respondent’s accounts; or

b. that any or all of the specified $40,000 if so taken, and/or the $33,326.83 payment made to RJS Chartered Accounting in Goderich through the Applicant’s use of the Respondent’s credit card, were in any way devoted to payment of the Applicant’s legal fees or the fees required by the Applicant’s confirmed litigation expert Mr Martindale, (of Davis Martindale LLP), in respect of which the relief I ordered pursuant to Rule 24(18) of the Family Law Rules was granted.

2. In my view, (already noted above), the credit card statements tendered by the Respondent nevertheless do make it reasonably clear that, on the specified dates in September and November in 2022, (i.e., well before the special appointment hearing before me), the Applicant used the credit card facility for a purpose not intended by the relevant provisions of Justice Nicholson’s order to secure, in effect:

a. the Respondent’s payment of $5,000.00 towards the fees required by the Applicant’s litigation expert Mr Martindale, of Davis Martindale LLP; and

b. the Respondent’s payment of $38,961.78 towards the fees required by the Applicant’s lawyers.

3. Described in different terms, the Applicant, prior to the special appointment hearing before me, already had resorted to self-help to secure, in effect, a portion of the relief she was formally requesting pursuant to Rule 24(18) of the Family Law Rules. At this point, I frankly do not recall that reality being brought to my attention either before or during the special appointment hearing before me. If such facts somehow were disclosed to me, I confess to their having somehow escaped my attention. In any event, I can confirm that I definitely had no such facts in mind when granting and quantifying the relief I awarded pursuant to Rule 24(18) of the Family Law Rules. Had I known and considered such facts:

a. I would have deducted the $5,000.00 already paid by the Respondent towards the past and/or anticipated fees of Davis Martindale LLP from the $150,000.00 amount I ordered the Respondent to pay in that regard pursuant to Rule 24(18) of the Family Law Rules; and

b. I would have deducted the $38,961.78 already paid by the Respondent towards the past and/or anticipated fees of Applicant counsel from the $75,000.00 amount I ordered the Respondent to pay in that regard pursuant to Rule 24(18) of the Family Law Rules.

4. In the result, I think fairness requires:

a. the Applicant’s confirmation that the Respondent will receive a credit of $5,000.00 towards his ordered obligation to pay $150,000.00 towards the past and/or anticipated fees of Davis Martindale LLP, and a credit of $38,961.78 towards his ordered obligation to pay $75,000 towards the past and/or anticipated fees of Applicant counsel; or

b. revision and/or amendment of the formal order made to reflect my substantive decision, (to the extent that order already may have been issued), so as to indicate and confirm that the Respondent is only being ordered to pay a further $145,000.00 towards the past and/or anticipated fees of Davis Martindale LLP, and a further $36,038.22 towards the past and/or anticipated fees of Applicant counsel.

5. If the parties are unable to agree on the form of an appropriate order reflecting my intended substantive disposition in light of the aforesaid comments, as well as the cost award in favour of the Applicant which I intend to make, they may secure, through appropriate consultation with the Goderich and London trial co-ordinators, a telephone conference appointment before me to have the form of the Order settled pursuant to Rule 25 (7) of the Family Law Rules.

6. It should be emphasized that, notwithstanding the provisions of the preceding sub-paragraph, I otherwise am not seized of this matter. Further proceedings in relation to this dispute can and should be brought before any judge of the court who happens to be available to deal with this Goderich matter in accordance with the regional schedule. ¹⁴

iv. Returning now to the present context, I simply repeat my view that the substantive relief I granted pursuant to Rule 24(18) of the Family Law Rules has no bearing on the cost award I now intend to make in favour of the Applicant in relation to the motion proceedings before me, except insofar as I think it represents unreasonable behaviour of the Applicant to be considered and discouraged, for the reasons outlined above.

v. Finally, although counsel for the Applicant emphasized in his cost submissions that the Respondent “has the means to pay and is in a better financial position to satisfy the costs request more so than the average family law litigant given his income and assets”, in my view this is not an appropriate submission for reasons already outlined. In particular, as noted above, our Court of Appeal has expressly indicated and emphasized that there is no principle relating to costs that requires wealthier individuals to pay more for costs for the same step in a proceeding than less wealthy ones.

14With all of the above in mind, I turn, finally, to formal quantification of the costs that should be awarded in relation to the motion proceedings before me, having regard to all of the circumstances and above considerations.

Conclusion

15In that regard, it has been said many times and in many ways that such discretionary cost determinations are far from an exact science. That is especially true in a case such as this, where there are a multitude of relevant considerations to be weighed in the balance.

16Again, while I have regard to all of the considerations outlined above, our Court of Appeal has emphasized that:

a. proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs to be awarded; and

b. at the end of the day, cost awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

17Having regard to all of the above, I think it fair and reasonable to order that the Respondent shall pay the Applicant her costs of the motion proceedings which took place before me, fixed in the all-inclusive amount of $40,000.00. For the sake of clarity, I indicate and emphasize once again that this further ordered financial obligation of the Respondent is in addition to, and not affected by, the substantive relief I granted earlier.

“Justice I.F. Leach” Justice I.F. Leach Date: August 28, 2023

Footnotes

i. If the offer relates to a motion, it is made at least one day before the motion date.

ii. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

iii. The offer does not expire and is not withdrawn before the hearing starts.

iv. The offer is not accepted.

v. The party who made the offer obtains an order that is as favourable as or more favourable than the offer, with the burden of proving that an order is as favourable as or more favourable than the offer to settle being, pursuant to Rule 18(15), on the party who claims the benefit of Rule 18(14).

Footnotes

1. 1As noted in my earlier endorsement, paragraph 9 of that Order made by Justice Nicholson indicated that the Applicant would be permitted to have continued use of the Respondent’s credit cards and an overdraft line of credit facility until the issues of child support and spousal support were determined by written party consent or by way of a further court order. I note that the email sent by Respondent counsel on March 2, 2023, conveying the settlement offer outlined above, acknowledged that the Respondent “has cancelled the credit card”, but would be “happy to put it back in place” under certain conditions; e.g., a further delay of seven months in that regard, (during which it was suggested the Applicant should make due using $40,000.00 which the Applicant was said to have taken by the Applicant from the Respondent’s unspecified “account” without his permission), with the Respondent also offering to “cover additional justifiable support that normally would have gone on the credit card when provided [with] evidence of the expenses” in the form of “receipts for expenses for the period”.
2. 2See footnote 1, supra.
3. 3I will turn in short order to general principles relevant to cost determinations in the family law context, but note at the outset that “bad faith” conduct is not simply conduct that is unreasonable, or which simply reflects bad judgment or negligence. It instead implies the conscious doing of a wrong because of dishonest purpose or moral obliquity, and contemplates a state of mind affirmatively operating with furtive design or ill will. See Hendry v. Martins, [2001] O.J. No. 1098 (S.C.J.); Nairn v. Lukowski, [2002] O.J. No. 2680 (S.C.J.); and Husein v. Chatoor, [2005] O.J. No. 5715 (O.C.J.).
4. 4Rule 18 of the Family Law Rules generally addresses “Offers to Settle”. I have regard to that rule in its entirety, but will not reproduce the rule in its entirety here. For present purposes, I simply will note that Rule 18(14) deals with the cost consequences of a party’s failure to accept a settlement offer, and generally indicates that a party who makes an offer is, (unless the court orders otherwise), entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
5. 5See: Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (S.C.J.), at paragraph 4; M.(C.A.) v. M.(D.), [2003] O.J. No. 3060 (C.A.), at paragraph 42; Serra v. Serra, [2009] O.J. No. 1905 (C.A.), at paragraphs 8 and 12; Costa v. Perkins, [2012] O.J. No. 2400 (Div.Ct.), at paragraph 50; Beaver v. Hill, 2018 ONCA 840, at paragraphs 8-13; and Brennan v. Fournie, 2022 ONSC 1491, at paragraphs 12-13.
6. 6See Wylie v. Leclair, [2003] O.J. No. 1938 (C.A.), at paragraph 24.
7. 7See Scipione v. Del Sordo, [2015] O.J. No. 5130 (S.C.J.), at paragraph 68.
8. 8See Fisher v. Fisher, [2015] O.J. No. 1532 (S.C.J.), at paragraph 22; and Palod v. MacDonald, [2018] O.J. No. 4180 (S.C.J.), at paragraph 23.
9. 9See, for example: Rondelet v. Neff, [2011] O.J. No. 3911 (O.C.J.), at paragraph 21; and Benzeroul v. Issa, [2017] O.J. No. 5385 (S.C.J.), at paragraph 32(d).
10. 10See Fielding v. Fielding, [2014] O.J. No. 38 (S.C.J.), at paragraphs 24-25, affirmed 2015 ONCA 901.
11. 11See M.(C.A.) v. M.(D.), supra, at paragraph 43; and Beaver v. Hill, supra, at paragraph 18.
12. 12See footnote 3, supra.
13. 13See, for example: Andersson v. Aquino, 2018 ONSC 743, and Dankiewicz v. Sullivan, 2019 ONSC 6382, and the authorities cited therein.
14. 14I note, in passing, that judge is unlikely to be me, as I currently am not scheduled to be dealing with Goderich matters again for the balance of this year, and during only a handful of occasions in 2024.