Court File and Parties

Court File No.: FS-22-00029402-0000 Date: 2024-07-18 Superior Court of Justice - Ontario

Re: Maggie Evans, Applicant And: Arthur W. Evans, Respondent

Before: Mathen J.

Counsel: Audrey A Shecter / Lindsay Karpetz, for the Applicant David Pomer, for the Respondent

Heard: July 18, 2024

Endorsement

[1] The Applicant, her counsel, and counsel for the Respondent attended before me at a motion today.

[2] The parties were married for 14 years. There are three children of the marriage, twin boys and a girl. The dispute before me today focused on financial disclosure necessary to finalize equalization.

[3] The Applicant served counsel with a Request for Information on May 16, 2024. On June 27, not having received what she considered to be an adequate response, the Applicant served Respondent’s counsel with a Notice of Motion. The motion was originally returnable on Thursday, July 11, but was rescheduled to Tuesday, July 16, before me.

[4] In her Notice of Motion, the Applicant sought the following relief:

a. Disclosure from the Respondent as outlined in the Notice of Motion; b. An advance on equalization in the amount of $200,000.00; and c. Costs of these proceedings on a full indemnity basis.

[5] The Applicant prepared voluminous and detailed materials in support of this motion. She also filed a factum.

[6] The Respondent responded to the Applicant’s motion by filing certain materials the day before the motion, to wit:

a. An affidavit by Respondent’s co-counsel David Sorbara advising that: on July 12, 2024, his office sent to Applicant’s counsel a ‘sharepoint’ link enclosing “all of the items requested in the Request for Information of May 16, 2024”; and on July 15 (the day before this motion), his office sent “an updated link…including item number 28 [from the Request for Information]”. b. In the same affidavit Mr. Sorbara advised that the requested equalization advance of $200,000 had been wired to Applicant lawyers’ trust account on July 11-12, 2024.

[7] The Respondent did not file a factum.

[8] Before me, the hearing focused almost exclusively on costs. Counsel for the Applicant objected in the strongest possible terms to the Respondent counsel’s actions described in paragraph 6 of these reasons. She characterized counsel as having acted in “bad faith” and in a manner “unproductive” to her and the court’s ability to deal with the issues brought forward at this motion. She further characterized the conduct as disrespectful to the Court itself. She noted that the Respondent’s alleged disclosure remains incomplete, although, somewhat understandably, she was not able to provide a detailed overview of what the disclosure actually entailed. Finally, she sought to have the Applicant’s costs fully indemnified in the amount of $25,297.88 (this amount did not include counsel’s appearance before me).

[9] Respondent’s counsel objected to the hearing being transformed exclusively into a discussion of costs as opposed to being focused on the merits. That said, he did not explain why a discussion of the merits remained relevant given that he had claimed to comply with all of the requested relief. Nor did he adequately explain why the disclosure and wire transfer unrolled in the way that they did. Respondent’s counsel objected strenuously to the amount of costs being claimed, finding it exorbitant in relation to the actual issues. He did not dispute that some costs were warranted, but argued that they should be no more than $3,000.

[10] The argument became quite heated, with accusations flying on both sides.

[11] I find that I can resolve this matter fairly simply.

[12] First, I find that the Applicant is entitled to costs. She brought the motion to secure disclosure and an equalization advance. The Respondent counsel’s actions described in paragraph 6 of these reasons indicates that she largely prevailed, albeit in a pre-emptive way. I am persuaded on a balance of probabilities that the Respondent was motivated to act due to the pending hearing of this matter. Therefore, I consider the Applicant to have prevailed on her motion.

[13] Based on the record before me, I decline to make a finding of bad faith on the part of Respondent’s counsel. I do find their behaviour in relation to this motion to have been unproductive. It was unhelpful for the Respondent to have failed to respond substantively to the motion until the “11th hour”. I therefore am prepared to find that, on a balance of probabilities, the Respondent/ Respondent’s counsel’s behaviour was unproductive under Rule 24(7) of the Family Law Rules. However, and in the alternative, I find that the Applicant is entitled to her costs in the ordinary course and under the general discretion afforded to me under Rule 24.

[14] Having said that, I am not persuaded that the Applicant is entitled to the sum sought by her counsel. While the course of events has been frustrating for the Applicant, I do not believe that costs surpassing $25,000 are reasonable for a one-hour motion of this kind. The issues, involving disclosure and an advance equalization payment, were not complex. I therefore find it appropriate to award costs of $10,000 inclusive of disbursements and HST.

[15] Second, it is appropriate to grant the Applicant the order she seeks with respect to disclosure in the form and wording originally requested. It is not reasonable to expect the Applicant, on July 16, to have been able to assess the disclosure that was provided to her on July 12 and 15, 2024. An order will therefore issue from this Court for disclosure as outlined in the Notice of Motion.

[16] Third, the requested relief for the advance equalization payment is now moot.

Order

[17] In conclusion, I make the following order:

[18] Within 15 days, the Respondent shall provide the disclosure requested in item 2 of 5 (pages 2 and 3) of the Applicant’s Notice of Motion dated June 27, 2024.

[19] Within 30 days, the Respondent Arthur Wayne Evans shall pay to the Applicant Maggie Evans costs in the amount of $10,000 inclusive of disbursements and HST.

Mathen J. Date: July 18, 2024