Court File and Parties

COURT FILE NO.: FS-12-00375231-0003 DATE: 2024-06-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Victoria Fielding, Applicant – and – John Craig Fielding, Respondent

Counsel: Gary Joseph and Elissa Gamus, for the Applicant Michael Zalev and Raquel Simpson, for the Respondent

HEARD: In Writing

PINTO J.

Costs Decision (Motion to Change)

[1] This is my costs decision in respect of the parties’ Motion to Change that was argued before me on November 29, 2022.

[2] Following the release of my Reasons for Decision on the Motion to Change dated March 31, 2023, the applicant sought clarification of several issues before the Order could be settled. I established a timetable and received written submissions. However, after reviewing the written submissions, I determined that an additional attendance on February 9, 2024 was necessary. At the February 9 attendance via Zoom, I provided rulings in respect of the issues that required clarification and settled the order in respect of the Motion to Change. The parties were unable to resolve the issue of costs and I received written costs submissions.

[3] The underlying facts and my findings are detailed in my Reasons for Decision: Fielding v. Fielding, 2023 ONSC 1819 (as amended by my Endorsement of February 9, 2024). I described the Motion to Change as the latest chapter in the parties’ litigation. Craig brought a Motion to Change to terminate his child support and spousal support obligations following his retirement. In response, Victoria sought to double her spousal support payments since her disability benefits had ended, and to continue to receive child support until Natalie completed her graduate degree in August 2023. [^1]

[4] Craig argues that he was the more successful party on the Motion to Change. He seeks total costs of $368,700 and asks that they be paid forthwith and made enforceable as support by the Family Responsibility Office (FRO). The breakdown of this amount is $337,400 on a full recovery basis, and an additional $31,300 for his costs associated with responding to Victoria’s requests for clarification, and preparing costs submissions.

[5] Victoria submits that she should be awarded costs in the amount of $289,450.25, with no costs awarded to Craig.

[6] I decided the following issues concerning the parties’ Motion to Change. In brackets, I have indicated which party was the successful or more successful party concerning the issue. My reasons for indicating which party was the more successful one are evident from my Reasons for Decision on the Motion to Change.

a) Craig’s decision to retire effective December 31, 2021 was reasonable. (Craig) b) Craig’s retirement and the corresponding reduction in his income was a material change in circumstances. (Craig) c) The termination of Victoria’s long term disability coverage in or around February 2022 was a material change in circumstances. (This issue was not contested) d) Craig is entitled to stop paying spousal support as of December 31, 2021 and should be credited with any overpayments in spousal support he has made to date. (Craig) e) Victoria is entitled to receive child support in respect of Natalie until August 31, 2023 but not after that date. (Victoria) The child support payments, if any, shall continue to be governed by the Order of Justice Monahan. (Craig) f) Craig is not required to pay Table child support for Natalie for the months of October 2020, November 2020 and February 2021. (Craig) g) Craig is required to pay Table child support for Natalie for May to August 2021. (Victoria) h) Craig’s Guidelines income for 2021 is $655,988. (Victoria) i) Craig is required to pay Table child support for Natalie for August 2022 and August 2023. (Victoria) j) Craig’s Guidelines income for 2022 and 2023 shall be based on his income tax returns for the years in question. (Craig) k) Craig is required to pay $85,565 in s. 7 expenses, and Victoria is required to pay $44,079 in s. 7 expenses for the period 2018 to 2022, inclusive. (Craig) l) Craig and Victoria are required to pay for s. 7 expenses for Natalie up to August 31, 2023 based upon Craig paying 66% and Victoria paying 34% of the s. 7 expenses which, in turn, shall be no more than $30,000 per year. (Craig) m) Craig is entitled to terminate his maintenance of Victoria as the beneficiary of extended medical, dental, and life insurance coverage effective April 1, 2023. (Craig) n) To the extent that Victoria has not already terminated life insurance coverage for Sean and Katie, she is entitled to do so. (not a contested issue) o) Neither party owes the other any further financial or other disclosure. (Craig) p) Victoria still owes Craig costs arising from the February 4, 2019 costs decision of Justice Monahan. (Craig was successful in respect of the timing of this payment)

[7] Each party’s position on costs is that the other acted unreasonably.

[8] Briefly, Craig, who commenced the latest Motion to Change, argues that:

a) He was clearly the successful party; b) He obtained a result that was significantly better than his November 16, 2023 Offer to Settle; and c) Despite prior criticism of her unreasonable litigation conduct by multiple judges, and despite having already been ordered to pay Craig more than $1,180,000 in costs, Victoria continued acting unreasonably.

[9] Victoria, in her costs submissions, argues that:

a) It was Craig who complicated and delayed matters to cause her emotional and financial harm. b) Craig’s Offer to Settle was served at the last minute after she had incurred substantial legal costs. c) Victoria was, in fact, successful on the child support issues, particularly the continuation of child support for Natalie. d) Craig’s Bill of Costs contains unreasonable and excessive charges including with respect to his lawyers’ rates and disbursements.

[10] I find useful the following discussion of costs by Kraft J. in Ilchuk v. Ilchuk, 2024 ONSC 1276:

[75] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) creates a presumption of costs in favour of the successful party, subject to the factors set out in r. 24: Beaver v. Hill, 2018 ONCA 840, at para. 10.

[76] [omitted]

[77] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, Courts of Justice Act, R.S.O. 1990, c. C.43., s.131. By r. 24(10)(a) of the FLRs, the court is to decide on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[78] 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 that cases are dealt with justly under Rule 2 (2) of the FLRs: Mattina v. Mattina, 2018 ONCA 867.

[79] While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M. (A.C.) v. M. (D.) (2003), , at paras. 40–43; Berta v. Berta, 2015 ONCA 918 at para. 94.

[80] The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, at para. 12. In Boucher v. Public Accountants Council (Ontario), , at paras. 28-29, 37, the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

[81] Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.

[11] Costs are in my discretion. Victoria’s costs submissions would have me delve into the distant past and find Craig unreasonable in his conduct of this litigation. I also disagree with Craig that he should be awarded full indemnity costs either because Victoria has acted in bad faith or because she has acted unreasonably throughout.

[12] Instead, I take a more practical approach which recognizes that Craig has been the far more successful and reasonable party on the Motion to Change. Further, I find that while Craig cannot be said to have acted reasonably on every single issue, I find that his overall position – that he was entitled to retire when he did, and that his retirement represented a material change in circumstance permitting him to terminate spousal support for Victoria – was entirely reasonable. That Victoria not only disagreed with that position, but responded by insisting that Craig double his spousal support payments, is indicative of her unreasonable approach to many, albeit not all of the issues on the Motion to Change.

[13] While there were a few legal issues that Victoria was successful on, such as the continuation of child support for Natalie to 2023, she was unsuccessful on the major issues that animated the latest Motion to Change. Overall, I find that an approach that recognizes Craig’s greater success, albeit not on the basis of full indemnification, is the right one. I find that awarding Craig 80% of his full indemnification costs is the correct approach. I would extend this finding to both the Motion to Change and any of Craig’s costs with respect to responding to Victoria’s requests for clarification, settling the order and preparing his Bill of Costs.

[14] I found Victoria’s “request for clarification” so convoluted that it necessitated bringing the parties back before me. While there were some issues in my Motion to Change that required some clarification, there was a strong attempt by Victoria to re-litigate several issues on the Motion to Change under the guise of a “request for clarification.” Victoria’s costs submissions bear the same hallmark of accepting little responsibility for prolonging this litigation, while retreading familiar ground about Craig’s unfair conduct.

[15] I do not agree that Craig’s lawyers’ rates or the disbursements charged are excessive. I note that Victoria spent $418,499.71 on her own professionals ($385,933.67 on the Motion to Change, and $32,566.04 thereafter) which compares to $368,700 ($337,400 and an additional $31,300) for Craig.

[16] I agree with Craig that he beat his November 16, 2022 Offer to Settle and that Victoria’s Offers were unreasonable.

[17] I find that Victoria paying Craig 80% of his overall costs or $294,960 rounded up to $295,000 is a result that is proportionate and reasonable to the stakes involved. Victoria contested virtually every issue and should now be expected to bear the cost consequences of that decision. Moreover, as indicated in my Reasons for Decision in respect of the Motion to Change, Victoria has the financial means to bear such a costs award.

[18] Victoria shall pay costs to Craig fixed in the amount of $295,000 within 30 days of the release of this decision. Given Victoria’s failure to pay past orders of the court, the costs award should be enforceable by FRO.

[19] This costs award shall bear interest at the prescribed rate pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43.

Pinto J. Released: June 3, 2024

Footnotes

[^1]: I have used the parties’ first names to avoid confusion and since the parties themselves have consistently used the parties’ first names throughout the proceedings before me.