Court File and Parties

COURT FILE NO.: FC-21-371 DATE: 2024/03/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melanie Chretien, Applicant AND: Joseph Andrew Kember, Respondent

BEFORE: Somji J.

COUNSEL: Mary Cybulski, for the Applicant Veronica Marson and Carolyn Shelley, for the Respondent

HEARD: In Writing

Costs Endorsement

SOMJI J

[1] The Applicant mother seeks costs in the amount of $3,097 following a disclosure motion initiated by her that was settled prior to the motion hearing. The Respondent seeks partial indemnity costs in the amount of $4,600 claiming the motion was brought unnecessarily.

[2] The issue to be decided is which party, if any, is entitled to costs, and if so, what is a fair and reasonable costs award in this case?

Issue 1: Is the father entitled to costs?

[3] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.

[5] The starting point is that the successful party is presumptively entitled to costs: r. 24(1) of the Family Law Rules, O. Reg. 114/99 as am. However, in assessing entitlement, judges must consider one, written offers to settle: rr. 18(14) and 24(12)(a)(iii); two, any unreasonable conduct on the part of a successful party: r. 24(4); and three, if a party has acted in bad faith: r. 24(8).

[6] The issue of cost consequences for failure to provide financial disclosure was addressed by Bennoto J in Roberts v. Roberts, 2015 ONCA 450, where her Honour stated financial disclosure is a basic obligation in family law, is automatic, and should not require repeated court orders, let alone three as was the case in Roberts, to obtain production: at paras 11 and 13. “Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.” Roberts at para 12. In addition, r. 1(8) provides for costs where a person fails to comply with court orders.

[7] The father argues that the motion brought by the Applicant was unnecessary and a waste of the parties’ time and fees. The father argues that at the time the mother finalized her Motion and Affidavit on September 28, 2023, she had been advised by phone on September 14th that the outstanding expert report and Amex records were forthcoming.

[8] I do not find the father’s account constitutes a full explanation of the situation. The mother brought a Motion to Change child support on the basis of a change in the father’s income. On April 25, 2022, Waters J made an extensive order for financial disclosure on the part of the father including information related to his employment, bank statements from all accounts, income tax returns, as well as personal and corporate card visa statements.

[9] According to the mother, the financial disclosure trickled in piecemeal thereafter resulting in the mother bringing a disclosure motion on November 11, 2022. On February 9, 2023, Blishen J ordered, on consent of the parties, that the father provide AMEX statements, his VISA application, and an income report with respect to benefits the father receives from not-at-arms length parties including in relation to housing, expenses coverage, benefits, and income including cash payments.

[10] Throughout the spring and summer of 2023, the mother requested updates of the income report yielding minimal responses from the father. When the income report was finally provided, it omitted certain aspects relating to housing benefits and tuition. According to the mother it was only two weeks before the motion that the father advised that he was agreeable to some components of the motion request, but even then the father continued to make unsubstantial allegations about her when she attempted to move the litigation forward without actually ever seeking any alternative relief from the court.

[11] A review of the Temporary Order of November 30, 2023 indicates that while not all the mother’s requests as set out in her original Notice of Motion were agreed upon, the mother did obtain the disclosure she was requesting. Success entitling costs does not require success on all issues: Zhang v Guao, 2019 ONSC 5767; Baryla v Baryla, 2019 BCCA 192. This includes matters that are settled: Scipione v Scipione, 2015 ONSC 5982 at paras 67 to 70.

[12] The substantial portion of the motion was the disclosure issues. Furthermore, the father’s settlement did not occur in September or October well in advance of the motion so as to minimize the mother’s litigation costs. It was only on November 27, 2023, three days before the scheduled motion hearing, that the court received a confirmation form indicating the parties had reached an agreement and the motion would not go forward.

[13] For all these reasons, I agree with the mother’s counsel that the motion would not have been required except for the father’s ongoing lack of compliance and delays with respect to disclosure. I note that these variation proceedings are now three years old and have not advanced largely because of the disclosure delays. In fact, it is because of these on-going delays that both parties have requested and received a judge to case-manage the matter. I find the father’s conduct in responding to the disclosure requests has been unreasonable.

[14] The fact that the motion settled does not disentitle the mother to costs. If an opposing party makes a good litigation choice by signing Minutes of settlement, that decision to resolve does not wipe out the history of poor litigation choices that would otherwise justify costs: Scipione at para 64 (f).

[15] The father argues the mother is in breach of the existing parenting order and that the expert report ordered does not establish an income higher than imputed. This is a matter to be determined at trial. Furthermore, even if it were the case, it does not undermine the father’s failure to respond in a timely fashion to a court order requiring financial disclosure.

[16] The father argues that he made an offer to settle that was more aligned with what was agreed upon. Upon review of the offer, which was made November 21, 2023, I note that with respect to the conditions regarding disclosure, it is not entirely aligned. There is an additional term in the consent order requiring the matter to be remitted to a case management judge should the father take the position that his employer is refusing to provide certain financial information and to consent to an order requiring them to produce it directly to the father.

[17] I find the mother is the successful party on the motion and presumptively entitled to costs. I do not find the mother engaged in any conduct that would disentitle her to a costs award.

Issue 2: What is the appropriate amount for the costs award?

[18] In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2) Family Law Rules (“FLR”), O. Reg. 114/99 as am, that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 at para 10.

[19] In determining quantum, judges are to consider: the conduct of the parties; the time spent by each party; written offers to settle, legal fees charged and counsels’ rates, expert and witness fees, disbursements and other expenses, and any other relevant matter: r. 24(12) FLR.

[20] In this case, the mother seeks full-indemnity costs of $1,728.90 from July to September 10, 2023 when the respondent was entirely unresponsive and provided no updates to the disclosure requests, and partial indemnity from September 14 until November 13, 2023, when the father finally entered into discussions, eventually conceding the substantive relief sought. She claims the father gained nothing while she was successful in obtaining the order requested.

[21] The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award: Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.

[22] I find the father’s delays in complying with the disclosure request was unreasonable conduct warranting an elevated costs award, but do not find the evidence reaches the high threshold of bad faith to warrant full indemnity.

[23] As the father pointed out, there were portions of the mother’s Notice of Motion requesting fines that were not agreed upon nor which the mother further pursued. While I have considered these issues along with non-controversial issues like leave for questioning, I find the substantial issue was disclosure compliance on which the mother was entirely successful.

[24] The matter was not complex, but of significance to the mother to advance the matter. A case management judge has now been assigned to ensure progress on the matter.

[25] Upon review of the bill of costs, I find the expenses claimed by the mother’s counsel are reasonable and proportionate having regard for the time needed to schedule, prepare, and settle the issues on the motion. The mother’s counsel is a 2012 call. I find the total hours spent is reasonable and commensurate with the work performed and the rates charged.

[26] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.

[27] Having considered that the mother was the successful party on the substantial issue of disclosure, the father’s unreasonable conduct, complexity, the billings and rates, I find that an elevated costs award in the fixed amount of $2800 is fair and reasonable.

Order

[28] The Respondent will pay the Applicant fixed costs in the amount of $2800 forthwith.

Somji J. Date: March 5, 2024