Court File and Parties

Court File No.: FC-21-759 Date: 2024/05/16 Superior Court of Justice - Ontario

Re: Melissa Saunders, Applicant And Anthony Mineault, Respondent

Before: Justice Engelking

Counsel: Altynay Teshebaeva, for the Applicant Julius Dawn, for the Respondent

Heard: In writing

Endorsement on Costs

[1] On January 22, 2024, my endorsement on the Applicant’s motion for an order for disclosure was released. In it, I noted at paragraph 31 that the Applicant was entitled to an order for costs but that as I had not heard submissions from the Respondent on the issue, I invited the parties to provide written submissions if they could not agree on a quantum. I have received submissions from both; this is my decision on costs of the motion.

[2] Although the Applicant sought an order for $6000 in costs in her Notice of Motion and at the motion, she now seeks an order for her total costs of $17,661 related to the October 24, 2023 motion ($9,729), the March 7, 2023, motion for which costs were reserved to the motion’s judge ($4,746) and the December 2022 procedural motion ($3,186).

[3] In her submissions on costs, the Applicant indicated that the Respondent had, contrary to my January 22, 2024, order, not yet paid the ordered $2830 disbursement. Additionally, despite my admonition in my January 22, 2024, endorsement regarding “the complete lack of communication or professional courtesy by the Respondent’s counsel”, it appears to have continued post my endorsement.

[4] The Applicant also provided an Offer to Settle to the Respondent dated October 13, 2024, which she submits is more favourable to the Respondent than the outcome of the motion in that, in the alternative to the Respondent producing all the requested disclosure, he could simply “provide the Applicant with his report valuing his interest in his partnership and an income report.”

[5] The Applicant submits that the Respondent’s behaviour has been unreasonable throughout this matter.

[6] The Respondent’s position is that no costs for the procedural motion in 2022 should be granted, based both on the fact that no costs were reserved for it and the Respondent consented to the order requested. The Respondent indicates as well that the parties settled the issue of the costs of the March 7, 2023, motion after the April 20, 2023, motion, with the portion which did not proceed being only the disclosure motion, which was simply adjourned. He submits that there should be no further costs ordered for that date.

[7] The Respondent submits, moreover, that the requested order of the Applicant far exceeds that which was requested at the motion and in her Notice of Motion. He also submits that the time spent by the Applicant’s counsel is excessive and she has billed for certain items not related to the October motion, such as responding to the Respondent’s appeal of my April 20, 2023, order.

[8] The Respondent submits that he has not acted unreasonably in the proceedings, in that several substantive issues, such as temporary spousal support, interim sale of the matrimonial home and an interim advance, have been resolved. He also submits, that he was making appropriate efforts to have his expert, Mr. Clarke, complete the required report for his business valuation. Although the Respondent indicates that he has made four interim offers to settle in the matter, none to my knowledge were related to the October 24, 2023, motion.

The Law

[9] The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.” [1]

[10] Rule 24(12) of the Family Law Rules, O.Reg. 114/99 sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. [2] Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. [3] Rule 18(14) of the Family Law Rules provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [4]

Analysis and Decision

[11] Having asked for a specific order at the motion and in her Notice of Motion, I find that it would be inequitable to revisit costs not contemplated by the Applicant herself for the motion. However, I also find that the Applicant has been put to additional expense to produce submissions on costs when the sum of $6000 or less could have been agreed to by the Respondent. That he was not even responding to her correspondence in the regard is particularly egregious.

[12] There shall, therefore, be an order that the Respondent pay to the Applicant $8,000 in costs for the October 24, 2023, motion within 30 days of today, which also includes the adjourned portion of the April 20, 2023, motion.

Engelking J. Date: May 16, 2024

Citations:

[1] Mattina v. Mattina, 2018 ONCA 867, paragraph 10 [2] Rule 24(12), Family Law Rules, O.Reg. 114/99, as am. [3] Ibid. [4] A party is entitled to costs on a full recovery basis if the offer was made at least one day before the motion, did not expire or was not withdrawn, is not accepted and the order made is as or more favorable than the offer.