COURT FILE NO.: FS-22-00028918-0000 DATE: 20231115

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HRVIC, SANJIN, Applicant AND: HRVIC, AIDA, Respondent

BEFORE: Justice M. Sharma

COUNSEL: Gary S. Joseph and Aria MacEachern, for the Applicant Ravital Khardas, for the Respondent

HEARD: October 17, 2023

Endorsement

[1] The Respondent wife brings this motion for the following relief:

a. An Order that the Applicant husband shall pay to the Respondent an advance on equalization she says is owing to her in the sum of $150,000, under s. 9 of the Family Law Act. b. In the alternative to (a), an Order for interim disbursements in the sum of $150,000 pursuant to r. 24(12) of the Family Law Rules. c. Despite a preservation order made by Akbarali J. on April 14, 2022, an Order permitting the Applicant to obtain a mortgage or loan in the amount necessary to satisfy any order made, with such loan being secured against the condo owned by the Applicant at 703-1320 Mississauga Valley Blvd., Mississauga, Ontario L5A 3S9. d. An Order quantifying the penalty owing from the Applicant to the Respondent in accordance with para 6 of the Order of Czutrin J., dated June 6, 2023 from June 6, 2023 to October 17, 2023 (134 days), in the sum of $13,400 payable within 30 days by way of bank draft. e. An Order that the Applicant comply with the disclosure ordered by Czutrin J. on June 6, 2023 at paras. 2(a), 2(c), 2(d), 2(e), 2(f), 2(h), 2(i), 2(j), 2(o), 2(p), 2(r), 2(s), 2(t), 8, 12, and 13, within 7 days. f. An Order that the Applicant comply with the following orders made by Czutrin J. on June 6, 2023 (a) a penalty in the amount of $20,300 (para. 6); (b) a cost award in the amount of $12,841 (para. 14); (c) reimbursement ordered in the sum of $4,500 (para. 7). g. An Order prohibiting the Applicant from taking any steps in this proceeding, including steps to respond to motions brought by the Respondent, until he fully complies with the orders made by Czutrin J. and any orders made in this motion. h. In the event of non-compliance with any orders made, an Order permitting the Respondent to bring a motion to strike the Applicant’s pleadings.

[2] The Respondent argues the Applicant is currently in breach of a court order for failing to facilitate the Applicant’s parenting time with the child. Because she does not come to court with clean hands, he seeks an Order that her motion be dismissed with costs. He also advances other reasons why the relief the Respondent seeks should not be granted.

[3] This motion was scheduled as a 1-hour motion. The Respondent uploaded to CaseLines 233 pages of material in support of her motion. The Applicant filed a Reply affidavit, sworn October 16, 2023, which the Respondent states I should not consider because it was filed late without consent of the Respondent. It deals primarily with the Respondent’s alleged non-compliance with court orders around parenting time. I have determined that it is not appropriate or necessary for me to consider this affidavit.

[4] Given the number of Orders sought by the Respondent and the volume of material filed, in my view, this motion should have been scheduled as a long motion and it ought to have had a case conference first before Kraft J., as directed by Diamond J. on August 10, 2023. Since I have reviewed the material, I will do my best to address each of the relief sought by the moving party, but defer other matters to be dealt with by Kraft J. at a case conference.

Overview

[5] Parties were married in 2010 and separated in 2021. There is one child of the marriage, aged 12.

[6] According to the Respondent, she was primarily responsible for the home and caring for their child, while the Applicant provided financially for the parties.

[7] The Respondent states the Applicant is self-employed and operating a successful construction company, Canada Construction Contractors Inc. (“CCC”).

[8] The Applicant, however, denies having an ownership interest in CCC. He states he is an employee. CCC’s two shareholders are Rijad Sljoka and the Applicant’s mother, Sutka Ivanic. The Respondent argues that Ms. Ivanic is holding her 50% interest in CCC in trust for her son, and that the Applicant and Mr. Sljoka are the true owners of CCC.

[9] There are three real properties involved in this litigation. They are all subject to a preservation Order made by Akbarali J. at a case conference on April 14, 2022.

[10] The first is the Matrimonial home in which the Respondent continues to reside, located at 627 The West Mall, Suite 908, Toronto, Ontario. It is solely in the Respondent’s name. The Applicant has advanced a resulting trust claim in the Matrimonial Home. The Respondent has identified a mortgage on the Matrimonial Home of $214,514.

[11] The second is located at 1895 Concession Road 2, Palgrave, Ontario (“Palgrave Property”). It is solely in the Applicant’s name. The Respondent has a trust claim over this property. This is a rental/investment property, and according to the Respondent was purchased on January 16, 2017 for $1,050,000. As of November 2021, the Palgrave Property had a mortgage of $745,028.

[12] The third is a condo at 1320 Mississauga Valley Blvd. It is solely in the Applicant’s name. According to the Respondent, it is unencumbered, which fact was not disputed in the Applicant’s motion material. This property was gifted to the Applicant by his mother.

Parties’ Positions

[13] It is the Respondent’s position that she is desperately in need of funds to advance her legal claims. She argues the Applicant has substantially more resources than her, and that she has exhausted all resources available to her. She argues that the Applicant’s delay and failure to comply with his disclosure obligations persist.

[14] It is the Applicant’s position that the Respondent’s material is not compliant with the Family Law Rules, that the legal test for an advance on equalization has not been met, and that the Applicant does not have funds to pay $150,000 as an advance or an interim disbursement; he does not even have funds to pay the costs that have been ordered against him. With respect to disclosure, he states he has provided all disclosure in his possession, as ordered, and that he cannot comment on whether CCC has provided disclosure. There is a motion to be heard on November 16, 2023 brought by the Respondent for disclosure from CCC.

Procedural History

[15] On April 4, 2022, parties had an early case conference before Shore J.

[16] On April 14, 2022, a case conference was heard by Akbarali J. where, among other things, the Applicant was ordered to provide certain disclosure, a temporary parenting schedule was put in place, and a preservation order with respect to the three properties was granted.

[17] On July 6, 2022, parties attended a conference before Shore J. Consent Orders were made around payment by the Applicant of without prejudice and temporary child support in the sum of $1,500 per month and spousal support of $3,500 per month. These orders commenced August 1, 2022. As of this date, the Respondent was responsible for paying all costs of the condo in which the Respondent lived (understood to be the Matrimonial Home). Shore J. also ordered the Applicant to take all reasonable steps to obtain disclosure from CCC, “including bringing a motion against the third party if necessary.”

[18] On November 15, 2022, Kraft J. heard the Respondent’s motion to strike the Applicant’s pleadings due to his failure to comply with court orders. This motion was adjourned to December 1, 2022.

[19] On December 1, 2022, Kraft J. heard the Respondent’s motion. Among other things, she ordered the Applicant to bring a motion within 45 days seeking disclosure from CCC, failing which, his pleadings would be struck. She quantified a daily penalty ordered by Shore J. in the amount of $7,600 from September 1, 2022 to November 15, 2022. On January 16, 2023, she ordered costs payable by the Applicant to the Respondent in the amount of $8,250.

[20] On March 28, 2023, Myers J. ordered on consent certain disclosure from CCC. On April 19, 2023, he ordered the Applicant to pay costs to the Respondent in the amount of $4,791.43.

[21] On June 6, 2023, Czutrin J. heard a motion for disclosure. On August 8, 2023, he ordered, among other things, the Applicant and CCC to provide certain disclosure (para. 2(a) to 2(u), para. 3), to retain a CBV to conduct income reports and a valuation of any interest the Applicant has in CCC. He also quantified the penalty owing by the Applicant to the Respondent in the amount of $20,300, based on an Order of Shore J., dated July 6, 2022, and that this order of a $100 daily penalty continued to apply for each day disclosure remained outstanding. He also ordered costs fixed in the amount of $12,841.89 payable by the Applicant to the Respondent.

[22] On August 10, 2023, Diamond J. assigned Kraft J. to case manage this proceeding. Parties were directed to request a case conference.

Issues

a. Should an advance on equalization be ordered?

[23] Under s. 9(1) of the Family Law Act, R.S.O. 1990, c. F.3, the Court has discretion to order advances on equalization payments: See Zagdanski v. Zagdanski, [2001] O.J. No. 2886; Mikhail v Mikhail, 2023 ONSC 5289. The factors to consider are summarized in Mikhail at para. 20 as follows:

• Whether there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;
• Whether there will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;
• Whether there is a need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and
• Whether there may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been a delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.”

[24] As stated in Zagdanski at para. 40,

“One must remember, however, that what is happening here is simply an advance of the applicant’s own money. Provided the safeguards as to amount are observed, there is no reasonable objection to the use of the funds to pursue the action itself. Where, as there often is, there is a great disparity in the resources controlled by the parties, there can be no justification in withholding from the weaker party a portion of the equalization which would enable the field of battle to be levelled.”

[25] In this case, I am not persuaded that an advance on equalization should be granted, principally because there is significant uncertainty as to the likely minimum amount of equalization to which the Respondent claims she is entitled.

[26] In the Respondent’s Net Family Property Statement (“NFP”), marked as being Without Prejudice, she identifies an equalization payment owed to her of $1,075,027. She identifies the Palgrave Property as having a value of $3,050,000. She has a trust claim in the property. Notwithstanding her trust claim, she has marked the full value of the Palgrave Property under the Applicant’s side of the ledger. If her trust claim is successful, it would eliminate or significantly reduce the Respondent’s entitlement to equalization. It may result in an equalization payment owing to the Applicant.

[27] There is also sufficient uncertainty with respect to the value of the Palgrave Property. Its value significantly informs the Respondent’s calculation of any equalization payment that may be owing. The Respondent values it at $3,050,000 based on a 1-page, unsigned opinion letter from a realtor, dated April 12, 2022, which she attaches to her NFP. It is not a formal appraisal, nor is it attached to an affidavit from the realtor. It unknown how the realtor came to this assessed value, whether he inspected the property, and what comparable properties he assessed when coming to this value.

[28] The burden rests on the Applicant, as the sole owner of the Palgrave Property, to have it valued. In his most recent Financial Statement, sworn October 13, 2023, he places its value at $1,600,000. He has not adduced other independent evidence of its value (e.g., an appraisal). Notwithstanding this burden on him and the fact that the parties have been separated since 2021, I am not persuaded that the value of the Palgrave Property is $3,050,000. According to the Respondent, it was purchased for $1,050,000 in 2017. Even in a hot real estate market, I am perplexed to understand how its value could have possibly tripled in four years based on the limited 1-page opinion letter of a realtor.

[29] While I am reluctant to reward the Applicant for not valuing the Palgrave Property, it is not possible to determine its value with any certainty on this motion. Furthermore, at this stage of the litigation it is also not possible to assess the merits of the Respondent’s trust claim. Any equalization payment cannot be determined on this motion with any certainty. For these reasons, I dismiss the Respondent’s claim for an advance on equalization.

b. Should an order for interim disbursements be made?

[30] Under rule 24(18) of the Family Law Rules, the Court may order interim disbursements be paid by one party to another “to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.”

[31] The power to award interim costs is discretionary. It is inherent in the equitable jurisdiction of the courts to order costs, although it may also be expressly authorized through legislation or regulation. Three criteria must be met: (a) the moving party must demonstrate that without the order, that party would be deprived of the ability to proceed with the case; (b) the moving party must establish a prima facie case of sufficient merit to warrant pursuit; and (c) special circumstances must exist to satisfy the Court that the case is within a narrow class of cases where this extraordinary exercise of power is appropriate: See British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, para. 36.

[32] Family cases in Ontario applying r. 24(18) (or its predecessor) rely on similar criteria. They are helpfully summarized in Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273 at para. 100. In Samis, at para 100 (9), the court noted that the Family Law Rules requires the exercise of discretion to award interim disbursements

“on a less stringent basis than the cases that call for such only in exceptional circumstances. The discretion should be exercised so that all parties can equally provide or test disclosure, make or consider offers or possibly go to trial. Simply described, the award should be made to level the playing field.”

[33] The Court in Samis also explained that “proof of the necessity of interim disbursements would be critical to the successful claim.” The claimant must demonstrate that disbursements are necessary and reasonable, and if an expert is needed, “the claimant must demonstrate there is a clear need for the services of said expert.” Samis, para 100 (11).

[34] A moving party who fails to show how the proposed funds are specifically to be used, that a particular expense is necessary and reasonable, or who fails to provide particulars of time necessary for an engagement will not be successful in obtaining an order for interim disbursements: See Antonopoulous v. Antonopoulous, para 37; Rosenberg v. Rosenberg, paras. 18 and 22; Ludmer v. Ludmer, 2012 ONSC 4478, paras. 57-62.

[35] Here, I am satisfied that, on a balance of probabilities, there is likely some merit to the Respondent’s primary claim that the Applicant has business interests in CCC beyond being a mere employee. He has received gifts and payments from CCC that have not been disclosed in his Financial Statement. Notably, CCC has made child support payments to the Respondent on the Applicant’s behalf and paid for his vacation to Bahamas. The Applicant has used the company credit card to pay for personal expenses, including from designer boutiques. Even if these amounts are to be paid back to CCC, this is not typical in an arm’s length employee-employer relationship. If the Applicant has an ownership interest in CCC, a business valuation will be necessary for equalization and income determination purposes. The Applicant, in two prior sworn financial statements, indicated he was self-employed. His profile at Scotiabank indicated he was self-employed. This all suggests the Respondent’s claims may have merit on a balance of probabilities, as best as can be determined on an interim motion.

[36] I am also satisfied that in the absence of an order for interim disbursements, the Respondent will not be able to present or analyze settlement options or pursue her claims. Her current expenses are about $7,050 per month, which exceeds her sources of income (child and spousal support and child tax benefits), totalling $5,656. She has also received OSAP funding, but most of this income will support her educational expenses, consistent with her obligation to become self-sufficient. While it may be possible to reduce some of her monthly expenses, it is not reasonable to expect them to be reduced to a level such that her income provides room for her to pay for her legal expenses.

[37] I am also satisfied that her legal expenses are necessary. As I explain below, the Applicant’s disclosure remains incomplete, which has required further steps to be taken by the Respondent. There is a motion to obtain disclosure from CCC and Royal Bank on November 16, 2023. A further motion may be necessary to allow the Respondent to bring a motion to amend her Answer. If there is continued non-compliance with orders, a motion to strike the Applicant’s pleadings may also be necessary.

[38] The Respondent’s law firm has provided an estimated Bill of Costs for future steps in this litigation up to a settlement conference, totalling $63,189. While I agree with the Applicant’s counsel that some of these costs are excessive (e.g., 26 hours for a motion for disclosure, up to 34 hours for a motion to strike pleadings), I am not persuaded that the list of anticipated next steps to prepare this case for a settlement conference are unnecessary. I consider to be reasonable estimated future legal expenses, up to the point of a settlement conference, the amount of $45,000.

[39] The Respondent has identified $72,000 as currently owing to her lawyer. Provided costs and penalties that the Applicant has been ordered to pay are in fact paid, this amount would reduce to $33,000.

[40] I am also satisfied that there will be expenses incurred in relation to evaluating and possibly responding to the Applicant’s expert CBV income and business valuation reports. The Applicant’s reports are not yet complete. The Respondent has identified an estimated maximum cost to respond to such reports to be $42,000, based on a fee estimate letter from her proposed CBV expert, Grewal Guyatt LLP.

[41] The Applicant argues it is premature to order this full amount until the Respondent has an opportunity to review the Applicant’s Reports and assess whether she intends to object to its conclusions. I disagree. After multiple disclosure orders, and continuing disagreement as to whether the Applicant is an employee or whether he has a business interest in CCC, it appears that nothing short of a forensic income and business valuation report will be required to settle this issue. Whether it takes the form of limited critique reports or separate responding income and business valuation reports, I am satisfied some external report undertaken by the Respondent will be necessary.

[42] Furthermore, I am satisfied that the letter from the Respondent’s expert provides sufficient particularity with respect to this expert’s anticipated expenses: it provides itemized cost for the work to be done, separate ranges of anticipated costs for a limited critique report of the income and business valuation reports, with a breakdown if a forensic component is necessary, cost ranges for complete business valuation and income reports, and an hourly breakdown of fees based on who would be performing the work. This gives the Court sufficient evidence to estimate what limited critique and full income/business valuation reports would cost. On this point, this case can be distinguished from Ludmer (see paras 57 to 58). It appears that the cost of preparing full income and business valuation reports, with a forensic component, would be more economical than preparing limited critique reports. The price range is from $38,000 to $42,000.

[43] I find that the Respondent has demonstrated it is necessary for her to incur $40,000 to prepare responding expert reports.

[44] I have considered whether the Applicant can afford to pay an interim disbursement award. He claims he does not have sufficient funds to pay outstanding cost orders and that his financial situation is dire. In his Affidavit in support of this motion, sworn October 11, 2023, he states he will be updating his Financial Statement in advance of the motion to demonstrate his dire financial statement.

[45] However, upon review of his Financial Statement sworn October 13, 2023, I am not satisfied the Applicant has met his obligation to disclose or that his financial situation is dire.

[46] For example, he has not identified the value of significant benefits he says he receives from his employer – namely his car lease, gas and insurance costs. He has not disclosed what his employer pays for his cell phone. These are all marked as TBD. He has not identified any housing costs. He has not valued a business interest with Royal Group Inc., which is also marked as TBD.

[47] As previously indicated, he has not provided evidence to support his valuation of the Palgrave Property of $1.6 M. In terms of his debts, his most significant one is a $2.2M mortgage with Scotiabank. It is not clear from his Financial Statement on which piece of property this mortgage is secured, or why it exceeds the value of the property over which he is the sole owner – namely the Palgrave Property. The Respondent’s affidavit states that when this rental property was purchased, there was a mortgage of $850,000 on it. How the debt ballooned to $2.2M is not explained in the Applicant’s responding affidavit. Furthermore, the Applicant does not identify in his Financial Statement the amount of monthly mortgage payments he makes, nor does he identify any monthly rental income from the Palgrave Property. He does not dispute in his responding affidavit that it is a rental property, as alleged by the Respondent.

[48] While the incomplete state of his Financial Statement may be tolerated at a first case conference, this case is now over a year old (commenced in March 2022) and there have been many attendances and several opportunities to update and provide full and complete financial disclosure. His capacity to pay an advance on equalization, interim disbursement, and penalties as ordered was the subject of this motion. He ought to have known that his capacity to pay would be scrutinized. I am not persuaded that his Financial Statement is complete or accurate. As such, I cannot conclude the Applicant’s financial situation is dire, as he argues. Rather, his Financial Statement provides some evidence as to why the Respondent has had to incur legal fees and will likely incur further legal fees and expenses to bring this case to settlement or to trial.

[49] The Respondent has an asset in the Palgrave Property. He is also the sole owner of the condo at #703-1320 Mississauga Valley Blvd., Mississauga. He has not demonstrated a loan or mortgage on this property, and he has placed a value on it of $600,000. These properties could be leveraged to obtain funds, if the preservation order were lifted. Furthermore, according to him, he has acquired loans from his employer and from his mother in the past. He has a mortgage of $2.2M with Scotiabank, apparently without any requirement to make any monthly mortgage payments, and I have no basis to conclude he could not acquire a further increase to this mortgage from Scotiabank.

[50] I am satisfied that it is necessary and appropriate to make an order for the Applicant to pay the Respondent an interim disbursement to level the playing field as between the parties. In terms of the amount, it should cover the Respondent’s outstanding current legal fees ($33,000 after cost and penalty awards are paid), cost of future legal fees to a settlement conference ($45,000), and costs for reasonable expert fees, which I fix at $40,000 based on the expected fees of the Respondent’s expert.

[51] I decline to order any amount to cover the Respondent’s personal costs (e.g. condo maintenance arrears) and other debts. This is not the purpose of an interim disbursements order.

[52] I am mindful that this motion is not a trial on the merits of the parties’ positions. It may be that the Applicant will be successful at trial in establishing he is an employee and that he has no beneficial interest in CCC. As such, the trial judge may re-apportion between the parties the interim disbursement I order to be paid.

[53] I therefore make the following orders:

a. By December 18, 2023, the Applicant shall pay the Respondent $118,000 as an interim disbursement, which amount shall be subject to re-apportionment between the parties at trial or by agreement of the parties. b. The Order of Akbarali J., dated April 14, 2022, is varied such that the Applicant may obtain a loan or mortgage in the amount of $118,000 to satisfy the interim disbursement order made today, and that the lending institution or private lender shall be entitled to register a Charge as security for the loan or mortgage against the condominium unit which is solely owned by the Applicant located at 703-1320 Mississauga Valley Blvd., Mississauga Ontario L5A 3S9, more particularly described as Unit 15, Level 7, Peel Condominium Plan No. 85; PT BLKS B&C PL 957 (Formally Town of Mississauga), PTS 1, 4, 5, 8, & 9, 43R2287.

c. Should an Order be made quantifying the penalty owed from the Applicant to the Respondent in accordance with para 6 of the Order of Czutrin J.?

[54] By Order dated June 6, 2023, Czutrin J. ordered at para. 6:

The daily penalty of $100.00 per day ordered by Justice Shore on July 6, 2022 is quantified at $20,300 for the period between November 16, 2022 to June 6, 2023, and that this amount shall be paid to the Respondent within 14 days by certified cheque or bank draft. The daily penalty of $100 ordered by Justice Shore shall continue to accumulate for every day that the Applicant’s disclosure remains outstanding, which includes the disclosure ordered herein.

[55] In paras. 2 and 3 of his Order, Czutrin J. ordered the Applicant and CCC to produce numerous items of disclosure.

[56] It is the Respondent’s position that many items of disclosure remain outstanding. It is the Applicant’s position that he has provided all disclosure that is in his possession and that he is able to access. He states that he has brought a motion against CCC for disclosure. I understand this motion is scheduled for November 16, 2023.

[57] I decline to make an order quantifying the financial penalty that the Applicant may be obliged to pay the Respondent, in accordance with the Order of Czutrin J., from June 6, 2023 to October 17, 2023 (the date of the motion). First, it is not possible on a 1-hour motion where other relief is also sought to determine which orders the Applicant has complied with and those which he has not. Second, the Order required the Applicant and CCC to make the listed disclosure. There is a motion to obtain disclosure from CCC on November 16, 2023. If something has not been disclosed because it is solely in CCC’s possession, it would be unfair to levy a penalty against the Applicant for this reason.

[58] Finally, the Applicant points to caselaw which shows that this Court has taken different positions as to whether it has the authority to order a financial penalty for non-compliance with an order without a motion for contempt being brought: See, e.g., Shapiro v. French, 2018 ONSC 6746; Belcourt v. Charlebois, 2020 ONSC 4124, paras 27-33; Altman v Altman, 2022 ONSC 4479, para. 43. This motion is not the appropriate venue to debate this issue. Even if I were inclined to quantify the financial penalty, I would not be ruling on the correctness of the original Orders made granting the penalties – I would simply be quantifying penalties from prior Orders.

[59] For these reasons, I decline to make an Order quantifying the financial penalty payable by the Applicant to the Respondent. This issue, however, may be addressed by a judge at a subsequent attendance.

d. Should orders be made compelling compliance with prior orders already made?

[60] I decline to make an Order that the Applicant comply with prior Orders. Orders demand compliance the instance they are issued or take effect. This includes Orders with respect to parenting time. Making subsequent Orders that a litigant comply with a prior Order diminishes the significance of the initial Order made.

[61] This Court does not have the resources to engage in the wasteful exercise of ordering litigants to comply with prior Orders. There exist remedies under the Family Law Rules for non-compliance with a court Order. If a non-compliant party has a legitimate excuse for non-compliance, they have a positive obligation to advise the opposing party promptly of the reasons why. If there is no consent to grant an extension of time for compliance, the opposing party can raise this at a motion or a case conference.

[62] I recognize that motions are costly. However, in this case, Diamond J. has already assigned this case for case management. He directed parties to arrange for a case conference with Justice Kraft in or after September 2023 to discuss next steps. It is unclear why a case conference with Justice Kraft has not been requested. A conference judge has authority to impose sanctions for non-compliance with court Orders and may schedule a motion to strike pleadings if satisfied there is a reason for such a motion.

[63] I have also considered that because of the preservation orders made, it may be that the Applicant is not able to pay the costs ordered because he cannot secure a loan to make the payments ordered. This is his position. It may be unfair to the Applicant to schedule a motion to strike his pleadings for this reason, when Consent Orders could be made to lift aspects of the preservation order to allow the Applicant to make court ordered payments. Options for resolution of this issue could be canvassed more openly at a case conference, possibly saving time and expense of future motions.

[64] For these reasons, I decline to make an Order compelling compliance with prior Orders, or to schedule a motion to strike. Parties are ordered to request a 9:00 a.m. case conference with Kraft J. forthwith to address any non-compliance. Justice Kraft can determine how best to deal with any allegations of non-compliance.

[65] In terms of other relief sought by the Respondent on this motion, this shall also be taken up with Kraft J.

Costs

[66] After completing the above reasons, I accessed CaseLines to review the parties’ Bills of Cost and any Offers to Settle.

[67] The Respondent has uploaded to CaseLines a Bill of Costs identifying $17,153.96 in full indemnity costs. The Applicant has uploaded a Bill of Costs identifying $5,352.81 in full indemnity costs. Both are inclusive of HST and disbursements.

[68] Rule 24 of the Family Law Rules lists factors the Court shall consider when making a cost award.

[69] The modern rules respecting costs aim to foster the following four fundamental purposes: (a) to partially indemnify successful litigants for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate behaviour by litigants; and (d) to ensure that cases are dealt with justly in accordance with the primary objective of the Family Law Rules set out in Rule 2(2). See: Ryan v. McGregor (1926), 58 O.L.R. 213 (Ont. C.A.), at p. 216; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (S.C.C.); Fong v. Chan, 181 D.L.R. (4th) 614, 46 O.R. (3d) 330 (C.A.); Serra v. Serra, 2009 ONCA 395 (C.A.) and Mattina v. Mattina, 2018 ONCA 867 (C.A.)).

[70] When fixing costs, “the costs award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful party.” See Zesta Engineering Ltd. v. Cloutier at para 4, cited with approval in Boucher v. Public Accountants Council for the Province of Ontario at para 24.

[71] The Respondent has uploaded an Offer to Settle, dated September 18, 2023. In summary, it requires compliance with payment of a penalty and the cost order made by Czutrin J. by no later than September 22, 2023; payment of an advance on equalization in the sum of $120,000 by September 29, 2023; and in the event of non-compliance with these terms by September 29, 2023, the Respondent would be precluded from taking further steps in this case and the Respondent would be permitted to bring a motion to strike.

[72] I am not satisfied that the Respondent faired as well as her Offer to Settle. First, the amount ordered as an interim disbursement is less than the amount of an advance on equalization included in the Offer. While it is marginally less, the Respondent’s Offer did not include a term to lift the preservation order to allow the Applicant to obtain loans, secured against his properties, to pay the amounts included in the Offer. I can appreciate why the Applicant would not accept the Respondent’s Offer if he had no means to access funds to pay what was proposed. His position on the motion was that he did not have those funds. This could have been included in the Respondent’s Offer to Settle, but it was not. For these reasons, the cost consequences of Rule 18 do not apply.

[73] The Respondent was successful in obtaining significant relief on this motion - an interim disbursement - and is presumptively entitled to some of her costs relating to this relief. I did not grant the bulk of the other relief she sought.

[74] I am concerned about the litigation history of this case. I am sympathetic with the Respondent’s argument that there has been non-compliance with court orders, and from her perspective, this motion may have been necessary. On the other hand, she has already brought several motions and parties were directed to attend a case conference, and it appears that neither party has acted on this judicial direction from Diamond J. Some of these issues could have been resolved more economically and efficiently at a case conference, rather than a motion.

[75] I have also considered the reasonableness of the expenses charged. In my view, $17,153 in costs for a 1-hour motion is excessive. Some of the Respondent’s material was not relevant to the determination of this motion. The relief sought was far too expansive for a 1-hour motion.

[76] Having considered these factors, and rules 18 and 24 of the Family Law Rules, I order the Applicant to pay the Respondent costs of this motion, fixed in the amount of $6,000 payable within 30 days.

Justice M. Sharma Release: November 15, 2023