Ontario Superior Court of Justice
Court File No.: FS-24-00041418-0000
Date: 2025-01-10
Between:
Kathryn Evans (Applicant)
and
Christopher Chambers (Respondent)
Applicant Counsel: Ruth Kalnitsky Roth, Dana Kalisky
Respondent Counsel: Rebecca Chow
Heard: October 29, November 14, and December 6, 2024
Judge: Rhinelander
Reasons for Decision
Introduction
1The Applicant brought a motion requesting retroactive child and spousal support, interim disbursements, to strike the Respondent’s pleadings or in the alternative that financial penalties be imposed for the Respondent’s past non-compliance, and costs.
2The Respondent sought an adjournment to retain counsel and is opposed to the relief sought. He failed to file any materials on this motion despite being given several opportunities.
3For reasons set out below, the Applicant’s motion is granted in part.
Procedural History of this Motion
October 29, 2024
4The motion was initially scheduled for October 8, 2024. The Respondent sought an adjournment to obtain new counsel. There had been a breakdown in communication between him and counsel prior to this date resulting in his being self-represented. The request was granted, and the motion rescheduled for October 29, 2024, marked peremptory to the Respondent to proceed.
5On the return of the motion, the Respondent sought a further adjournment. He advised he contacted seven lawyers, five of whom were willing to represent him but were unavailable on October 29, 2024. No further information was provided.
6The motion commenced, and the Respondent was permitted a short adjournment to November 14, 2024, to retain counsel. In the interim, the Respondent was ordered to pay child support arrears of $7,369. He was also ordered to file (i) the requisite financial documents, (ii) a responding affidavit to this motion, and (iii) a response to the Request for Information, no later than 4:00 p.m. on Tuesday, November 12, 2024.
7If the Respondent failed to comply with the above order, the Applicant was invited to amend her motion to seek to have the Respondent’s pleadings struck for repeated breaches of court orders.
November 14, 2024
8On the return date, the Respondent appeared with counsel who he had retained on November 12, 2024. He failed to serve and file any of the materials, and the Applicant was granted leave to amend her motion to strike the Respondent’s pleadings. Counsel for the Respondent advised she had not seen the Request for Information or the pleadings. Acting on her client’s instructions, she informed the court what her client was prepared to pay monthly for child and spousal support. The Respondent was advised this was not a negotiation, or a conference, but a motion, upon which a determination would be made based on the record before the court. The only materials before the Court were on behalf of the Applicant as the Respondent has chosen not to comply with earlier court orders.
9The Applicant requested the Respondent’s pleadings be struck, in the alternative financial penalties be imposed for the breaches. I reserved my decision and ordered the parties to attend before me on December 6, 2024, for an update on whether the Respondent had provided disclosure and served and filed the requisite materials as ordered.
December 6, 2024
10On December 6, 2024, no additional materials had been filed. Further submissions were made including an update regarding disclosure provided.
Background
11The parties began to cohabit in October 2010. They married February 14, 2014 [1], in Mexico and separated April 1, 2023. There are two children of marriage, R, age 8, and V, age 5, (collectively, ‘the children’).
12The parties separated on a previous occasion and were able to work through the difficulties. This is not the case at present, and it has become a high conflict matter.
13During the relationship, the Applicant was reliant on the Respondent for financial support. She described a lavish lifestyle where they travelled on private planes and divided their time between Ontario and Florida. The parties jointly own a luxury home in Toronto, and a second property. The Respondent owns several properties in Florida.
14The Applicant moved out of the joint residence on March 1, 2024, due to the Respondent’s abusive behaviour. The Applicant alleges physical, emotional, and financial abuse. Evidence of the Respondent’s financial abuse include controlling the finances, not permitting the Applicant to have her own credit card, previously being provided a monthly income of $5,000 during their relationship that was reduced to $3,000 after separation and access to a credit card was terminated.
15Prior to having children, the Applicant worked for L’Oreal and earned approximately $70,000. She obtained an 8-month contract with Estée Lauder that ended June 21, 2024. She attributes the early termination of her contract to having to attend to childcare responsibilities created by the Respondent. She has since secured a 12-month contract with L’Oreal that pays $80,000, however, does not have health benefits.
16The Applicant argues she put her career on hold to raise the children and take care of the matrimonial home which provided an opportunity for the Respondent to expand his company. She was discouraged from working and has incurred a six-year gap in her career.
17The Applicant seeks spousal support on both a compensatory and needs-basis. The Applicant seeks retroactive and prospective spousal support on this motion from March 1, 2024, the date she moved out. The Respondent was sent a letter from the Applicant’s counsel on September 11, 2024, that ongoing and retroactive support is owed.
18The Respondent solely owns a company, Purkel Products Inc., that had been a family business. He bought out his father’s interests for $3,000,000 between 2011 and 2016. At the time, it had a team of approximately four people. Over the years, the Respondent worked to grow the business. It grew to 8 people and required him to travel often.
19The Respondent has a self-reported annual income of $375,000 pursuant to his Answer. His 2022 Notice of Assessment shows an annual income of $372,840. Due to the affluent lifestyle the parties lived, the Applicant believes the Respondent earns substantially more and requests a Chartered Business Valuator (“CBV”) provide an income assessment of the Respondent’s gross income from all sources for the years 2021, 2022, 2023, and 2024. For purposes of this motion, she relies on his self-reported income.
20On November 14, 2024, counsel advised the Respondent served a financial statement and purports his income for 2023 is $204,000, which he collects as salary from Purkel Products Inc. No sworn materials were provided by the Respondent on this motion despite several opportunities and a court order.
21Since the Applicant moved out, any monies paid to her have come from the Respondent’s company as an “employee”. Therefore, all funds are subject to consideration as employment income and taxable to her. She seeks leave to add Purkel Products Inc., including all its enterprises, as a Respondent to this matter. She also seeks to pierce the corporate veil for the purpose of securing and enforcing the payment of all support, costs, and penalties owing from the Respondent to the Applicant against Purkel Products Inc. and its enterprises.
22Upon the commencement of the motion, the Respondent had failed to comply with the Family Law Rules and several orders of this court as follows:
- To serve and file Financial Statements with the court as required by the FLR;
- To file his Financial Statement and supporting documentation by May 27, 2024 (Des Rosiers, J. order of April 30, 2024);
- To attend questioning scheduled on consent for October 17, 2024, regarding the date of separation and validity of marriage (Des Rosiers, J. order of April 30, 2024);
- An extension was granted to file his financial statement along with all supporting documentation on or before July 31, 2024 (Hood, J. order of July 15, 2024);
- To provide a response by September 30, 2024, to a Request for Information dated August 29, 2024 (Hood, J. order of July 15, 2024);
- To serve and file the requisite financial documents pursuant to the FLR (Rhinelander, J. order of October 29, 2024);
- To serve and file a responding affidavit to this motion (Rhinelander, J. order of October 29, 2024);
- To serve and file a response to the Request for Information, no later than 4:00 p.m. on Tuesday, November 12, 2024 (Rhinelander, J. order of October 29, 2024); and
- To pay the Applicant child support for the month of November via e-transfer (Rhinelander, J. order of October 29, 2024).
23The Applicant has attended two TBST appearances, two case conferences, and three times on this motion and had yet to receive a sworn Financial Statement.
Issues
24The issues to be determined on this motion are child support (including arrears); spousal support (retroactive and prospective); interim legal fees and disbursements; whether to strike the Respondent’s pleadings regarding financial issues and/or impose financial penalties for breaches of court orders; leave to add Purkel Products Inc. and its subsidiaries or enterprises as a party; leave to pierce the corporate veil for purposes of securing and enforcing the payments of all support; whether to order an income assessment of the Respondent’s gross income; and costs.
Analysis
Child Support
25The Family Law Act (“FLA”) requires every parent to provide support, to the extent that the parent is capable of doing so, for his or her minor children.
26The Divorce Act permits a court to make an order requiring a spouse to pay support of any or all children of the marriage in accordance with the applicable guidelines.
27The Applicant seeks Table child support for the children pursuant to the Child Support Guidelines.
28The Respondent has a self-reported annual income of $375,000 as set out in his Answer at paragraph 62 dated June 16, 2024. The Respondent stated the business had its best year in 2019 where he estimated his income as about $1 million. Subsequently, the company suffered during Covid. It states, “Since then, Christopher has earned in or around $375,000 per year” (emphasis added). On November 14, 2024, counsel advised the Respondent prepared a financial statement and claims his income for 2023 is $204,000. No sworn materials were provided by the Respondent on this motion despite several opportunities and a court order to do so. No explanation was provided for the contradictions between his Answer and the recently drafted financial statement. For purposes of determining child support, the income of the Respondent is based on an annual income of $375,000.
29Using this income, Table Child Support for two children is $4,777 per month in Ontario. The Applicant’s current income is $80,000. Table child support for two children based on this income is $1,211 per month. The parties currently have equal parenting time. After child support setoff of $1,211 per month, the Respondent is responsible for paying child support of $3,566 per month subject to adjustments.
30The Applicant sought child support arrears for the period between March 1, 2024, to October 31, 2024. Arrears were calculated as $7,369. The information received is this amount has been paid pursuant to my order dated October 29, 2024, but may be subject to tax implications as it was paid via a “payroll deposit” from the Respondent’s business Purkel Products Inc. If a miscalculation has been made, the parties should set out any arrears owing in a draft order to be sent to the Family Law Office directed to my attention.
31Effective immediately, on an interim without prejudice basis, the Respondent shall pay child support on the 1st day of each month to the Applicant in the amount of $3,566.
Spousal Support
32Section 30 of the Family Law Act (FLA) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
33Section 33(8) of the FLA sets out the purposes of spousal support and subsection 33(9) sets out how to determine the amount of spousal support.
34Section 15.2 of the Divorce Act grants this Court jurisdiction to make an order for interim spousal support, the factors to consider and its objectives.
35The court has considered the above provisions in deciding this motion.
36In Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, Kraft, J. summarized the principles that apply on motions for temporary spousal support as follows:
a) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.
c) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge.
d) The primary goal of interim spousal support is to provide income for a dependent spouse from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.
e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.
f) The Spousal Support Advisory Guidelines is a non-binding guideline that provides a “valuable litmus test” for assessing both the range within which spousal support, or final, should be ordered and the duration of such support.
37Entitlement can be based on compensatory, non-compensatory or contractual grounds. (See Bracklow v. Bracklow). Compensatory and non-compensatory considerations should be considered to equitably alleviate the economic consequences of the breakdown of the relationship.
38A support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient and can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. Bracklow, supra.
39In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, looking at her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.
40Compensatory spousal support is awarded to a spouse to compensate for sacrifices and contributions made during marriage, for economic losses a spouse experienced and continues to experience because of the marriage, and for the benefits which the other spouse received by virtue of the sacrifices. Bracklow, supra.
41The Applicant seeks temporary spousal support from the Respondent on a prospective and retroactive basis commencing March 1, 2024. Pursuant to the Guidelines, she argued the Respondent should be paying $5,675 per month for mid-range spousal support.
42She seeks spousal support on both a compensatory and needs-basis. The Applicant is 43 years old, and the Respondent is 48 years old. The parties cohabited from 2010 to 2023. The Applicant moved out March 1, 2024. The Applicant had not worked during the parties’ marriage and maintained a traditional role in the home and was the primary caregiver to the children.
43The Applicant is entitled to an interim award for spousal support that reflects the parties’ former lifestyle and considers the sacrifices made to her career progression when she stepped away to care for the children and the home. The Applicant argued where there is a strong compensatory claim for support the quantum and duration should be at the higher end.
44In this specific case, on an interim without prejudice basis, I have determined the appropriate amount payable by the Respondent to the Applicant based on the SSAGs for spousal support is at the low range of $4,598. This amount is based on the Respondent’s annual income of $375,000 for reasons set out above. The basis for ordering spousal support at the low range provides each party with an equal net disposable income. To order support at the mid to higher range creates an uneven distribution of net disposable income where the parties have equal parenting time with the children.
45Spousal support is payable commencing March 1, 2024, the date the Applicant moved out of the home. Spousal support arrears from March 1, 2024 to January 31, 2025, total $50,578.
Interim Fees and Disbursements
46Rule 24(18) of the Family Law Rules provides authorization for a court to “make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees”. It seeks to level the playing field between the parties to ensure the just determination of issues between parties and recognizes there may be circumstances where one party cannot afford to pursue justice given the disparity in financial resources available to that party. Morton v. Morton, 2015 ONSC 4633.
47The power to order interim disbursements is discretionary and a “court’s discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial…”. Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074 at para 14.
48The onus is on the person seeking an interim disbursement to demonstrate the following:
a. The interim disbursements for which an advance payment is requested are important to matters in issue in the proceeding as a whole;
b. The disbursements are necessary and reasonable given the needs of the case and the funds available. If the disbursements are for payment of an expert, the moving party must demonstrate a clear need for the services of the expert;
c. The moving party is incapable of funding the requested amounts;
d. The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements; and
e. The imposition of the payment on the responding party will not cause undue hardship to the payor: Morton, para. 97, citing Stuart v. Stuart, [2001] O.J. No. 5172 (S.C.), at para section 7, 11-13. Ibid, paragraph 12.
49The Applicant seeks an interim disbursement of $50,000 for legal fees and disbursements. Specifically, disbursements to retain an expert to conduct a lifestyle analysis to ascertain the Respondent’s true income to ascertain his net family property.
50I am not satisfied the Applicant has met the onus given my decisions regarding other relief she has sought including her entitlement to spousal support, and the arrears owed exceed the disbursement amount requested. For reasons set out below, the request for disbursements to retain an expert to conduct a lifestyle analysis to determine the Respondent’s true income may be premature.
51Therefore, the request for an interim disbursement is dismissed without prejudice.
Striking of Pleadings and/or Financial Penalties for Breaches of Court Orders
52I have determined the Respondent has breached previous court orders. I must now consider what is an appropriate remedy. The Applicant requests the Respondent’s pleadings be struck or in the alternative, a monetary penalty of $5,000 be imposed in addition to a daily fine of $100 for each day he fails to file a financial statement and affidavit.
53Pursuant to Rule 1(8)(e) of the Family Law Rules: "If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter including, if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise."
54The Supreme Court of Canada has affirmed that a court may decline to hear a litigant who is in breach of a court order. This principle has been followed by the Ontario Court of Appeal. In Murphy v. Murphy, 2015 ONCA 69 at para. 6, the Ontario Court of Appeal declined to hear the submission of an appellant who was in default of a costs order. At paragraph 6, the Court remarked: “to hear the respondent's submissions would be to reward his deliberate and willful misconduct.”
55The Courts have been clear that family law litigants must respect court orders. In Gordon v. Starr, [2007] OJ No. 3264, at para 16 and 23, Quinn, J. stated that, “court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that family law proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with…orders” and "An order is an order, not a suggestion. Non-compliance must have consequences."
56Motions requesting a party to do what he or she was supposed to have done voluntarily, or what he or she has already been ordered to do, are a waste of judicial resources and for that reason are contrary to the parties' duties to help the court implement the primary objective of the FLR.
57Pursuant to Rule 1(8)(c) of the Family Law Rules, where a party has failed to obey a court order, the Court may make an order striking out any document filed by a party including an Answer. If an order is made striking out a party's pleadings, Rule 1(8.4) provides that: the party is not entitled to any further notice of steps in the case; the party is not entitled to participate in the case in any way; the court may deal with the case in the party's absence; and, a date may be set for an uncontested trial of the case.
58Courts are asked to consider the striking of pleadings as one of last resort where there are alternate remedies available.
59In Van v. Palombi, 2017 ONSC 2492, the Divisional Court set out the legal principles exercising the use of judicial discretion to strike a party’s pleadings:
i) Is there a triggering event justifying the striking of pleadings?
ii) Is it appropriate to strike the pleadings in the circumstances of the case?
iii) Are there other remedies in lieu of striking pleadings that might suffice?
60In undertaking this task, I must consider and weigh the following factors (1) the extent and persistence of the non-compliance, (2) whether the disobedience of the orders and Rules was willful in nature, and (3) whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches: Chowdhury v. Chowdhury, 2024 ONSC 4677 at para. 25.
61The Respondent, having attended court on several occasions, fails to understand the seriousness of orders. Rather than follow orders, he participates as he sees fit. If he does not agree with an order, he ignores it, just as he has ignored the FLR and court orders to file a financial statement. He has missed deadlines and discharged several different counsel on the eve of conferences and motions. Whether the latter was done strategically to deliberately stall, or delay the process is yet to be established but a strong inference is beginning to take root.
62The Respondent is now on his fifth counsel within as many months since he filed an Answer. Since retaining his current counsel, I am advised that he has produced some disclosure and is working on obtaining additional items requested. He has also served a financial statement on November 12, 2024 (3.5 months late from Hood, J.’s order and 5.5 months late pursuant to DesRosiers, J. order). No affidavit had been filed.
63In E.L.R. v. D.M.S., the Court noted: “The common theme in these cases is that, if there is a request to enforce the breach of a court order, particularly with respect to disclosure, only in exceptional circumstances would the court do nothing.” The policy of the court is to impose the appropriate sanction to encourage compliance with the court orders in issue and to encourage respect for the process of the court.
64The triggering event in this case is the Respondent’s non-compliance with earlier court orders. This is further frustrated by his breach of my orders pending the continuation of the motion.
65Due to the previous breaches of court orders, the circumstances of this case could easily be one where it is appropriate to strike the Respondent’s proceedings. However, I am satisfied that other remedies can be imposed. If the Respondent does not abide by this Order, he may face the “three strikes your out” on a renewed motion of the Applicant to have his pleadings struck.
66The Court has determined the imposition of a financial penalty will bring home to the Respondent the importance of abiding by court orders and the rules of procedure. Failure to follow future court orders may result in his pleadings struck and his watching the matter unfold in the absence of his participation.
67The Respondent shall pay a financial penalty of $3,000 to the Applicant for breaches of the court orders of DesRosiers, J. and Hood, J.
68The Respondent shall serve and file his financial statements and a disclosure brief in support of his Form 13 Financial Statement within fourteen (14) days of release of this judgment. Failure to do so, will result in a daily penalty of $100 payable to the Applicant for every day it remains outstanding.
69The Respondent shall provide an affidavit to include outstanding disclosure and responses to the Applicant’s RFI dated August 29, 2024, within fourteen (14) days of release of this judgment. Failure to do so, will result in a daily penalty of $100 payable to the Applicant for every day it remains outstanding.
Chartered Business Valuator / Leave to Add Purkel Products Inc. / Pierce the Corporate Veil
70The Applicant has requested the Respondent obtain a CBV to provide an income assessment of the Respondent’s gross income from all sources for the years 2021, 2022, 2023, and 2024.
71A self-employed person has the onus of clearly demonstrating the basis of their gross and net professional income. This includes demonstrating that the deductions from gross income should reasonably be considered in the deduction of income for child support purposes. Whelan v. O’Connor.
72This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 CarswellOnt 3450 (Ont. C.J.).
73While a self-employed party does not have an obligation to produce an income analysis if their income is called into question, a self-employed party has an obligation to satisfy the court of their true income: See: Sargalis v. Sargalis, 2019 ONSC 530, para. 11. This may require an expert. See: Lafazanidis v. Lafazanidis, 2020 ONSC 5496.
74The Respondent has delayed providing complete and accurate financial disclosure for months. His withholding of the most basic disclosure continues to stall the matter.
75Child support payments have been made on corporate cheques from Purkel Products Inc. The first five months, child support was paid as income to the Applicant and taxed, showing deductions to the Applicant on a paystub.
76The Applicant expressed concern regarding income tax implications to her. She has requested proof she is not listed as an employee on the Respondent’s company payroll. The Respondent is ordered to provide proof the Applicant is not listed as an employee of the company or any of its subsidiaries and shall provide a record of employment to the Applicant within 30 days. Any support payments paid through Purkel Products Inc. shall be reconciled for tax consequences once the Applicant’s liabilities are ascertained.
77Having considered the above, it is necessary to order the Respondent to retain the services of a CBV to fully understand his true income for support purposes because: i) the Respondent’s lack of disclosure and refusal to date to be forthcoming about his income; ii) support has been paid from his company; and iii) evidence that the company income was and continues to offset what he claims for income tax purposes.
78I fail to see a cause of action as against Purkel Products Inc. It is the Respondent’s income and financial circumstances that are necessary for a court to determine support. A CBV has been ordered. The Applicant’s request for leave to add Purkel Products Inc. and all of its enterprises is dismissed.
79The request to pierce the corporate veil for purposes of securing and enforcing the payment of all support, costs, and penalties owing from the Respondent to the Applicant is a triable issue. Leave is denied.
80The Respondent is ordered to remove the Applicant as an employee of Purkel Products Inc. and provide a record of employment within thirty (30) days.
81Any wages paid through Purkel Products Inc. in lieu of child and/or spousal support shall be reconciled for tax consequences once the Applicant’s liabilities are ascertained.
Other Relief Requested
82The Applicant seeks a term in the Order ordering the Respondent to not enter any residence of the Applicant and to wait outside for the children for exchanges of parenting time.
83The parties have separated. The Applicant is currently residing with her mother. There is no reason or purpose for the Respondent to enter the premises for purposes of exchanging the children. To unlawfully enter a dwelling house without consent is a criminal offence. I see no need for the Respondent and/or the Applicant to enter the residential premises of the other party for purposes of parenting exchanges without invitation. Therefore, both parties are ordered not to enter the other’s residence and shall wait outside for purposes of transitioning the children for parenting time.
Costs
84The Applicant seeks costs of $32,449.65 for this motion on a full indemnity basis payable immediately and enforceable as child support.
85Costs orders are in the discretion of the court pursuant to Section 131(1) of the Courts of Justice Act, RSO 1990, c C.43.
86The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs: Beaver v. Hill, 2018 ONCA 840 at para. 10.
87The court must step back and exercise judgment, having regard to all the circumstances, as to what is a fair and reasonable amount to be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario, (2004) 71 O.R. (3d) 291.
88The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake.
89Rule 24(1) creates a presumption of costs in favour of the successful party on a motion. An award of costs is subject to the factors listed in Rule 24(12) including the importance and complexity of the issues, the reasonableness of each party’s behaviour in the case, the lawyer’s rates, the time properly spent on the case, the expenses, and any other relevant matter.
90In deciding whether a party has behaved reasonably, the court shall examine: (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept. Unreasonable behavior “in relation to the issues” includes behavior that: (1) is disrespectful of other participants or the court; (2) unduly complicates the litigation, (3) increases the cost of litigation: Harper v. Smith, 2021 ONSC 3420.
91To determine whether a party has been successful, the court should examine who was the successful party, based on the positions taken in the litigation. See: Lazare v. Heitner, 2018 ONSC 4861. This assessment includes the positions taken in the pleadings, and the specific relief sought at the hearing, if different. See: Kyriacou v. Zikos, 2022 ONSC 401. The court may also consider how the order compares to any settlement offers that were made. See: Lawson v. Lawson; Todor v. Todor, 2021 ONSC 3463; Kyriacou v. Zikos, supra; G.E. v. J.E., 2023 ONSC 1743.
92Although not specified in Rule 24(11) as factors in determining costs, the financial means of the parties, their ability to pay a costs order and the effect of any costs ruling on the parties and the children of the family are also relevant considerations in reaching a determination on the issue of costs. Fyfe v. Jouppien, 2012 ONSC 97.
93The Applicant party, while not achieving all relief sought, is the successful party on this motion.
94The conduct of the Respondent in continually setting up roadblocks and his non-compliance and ignoring of court orders is a significant issue which left the Applicant with no other recourse.
95The Respondent was provided with several opportunities to submit responding materials but chose not to. For reasons unknown to this court, he has opted to do as he chooses and respond to court orders as he sees fit.
96His requests to adjourn the motion to retain counsel have added to the Applicant’s costs.
97Had the Applicant been fully successful, this is a case where full indemnity would be warranted. The conduct of a party may be considered when determining an order for costs. The Respondent has demonstrated a disregard for court orders.
98Having considered the jurisprudence and the submissions of counsel, in the circumstances of this case and on this motion, costs are ordered payable by Respondent to the Applicant in the amount of $27,000 payable within thirty (30) days.
99Should any amounts remain unpaid from this decision, upon the earliest closing date of the sale of either of the parties’ properties, all amounts owing shall be paid to the Applicant from the Respondent’s share of the net sale proceeds without requiring the Respondent’s authorization or consent or a further court order.
100A SDO shall issue.
Note
1The Applicant advised the Respondent denies that the parties were married and contests the date of separation of April 1, 2023. The parties planned and executed a wedding in Mexico and presented as married but never formalized it with a Marriage Certificate: whether this was intentional, or an oversight remains unresolved.
Date: January 10, 2025
Rhinelander