Vinken v. Earle, 2025 ONSC 2633

Court File No.: FC-13-1687-0001
Date: 2025-05-01
Superior Court of Justice, Family Court - Ontario

Re: Johnny Vinken, Applicant
And: Heather Anne Earle, Respondent

Before: Robert B. Reid
Counsel:
Brian R. Kelly, Counsel, for the Applicant
Shana Maiato, Counsel, for the Respondent

Heard: January 15, 2025 (Costs submissions due April 25, 2025)

Decision on Costs of Motion

[1] The applicant moved for various forms of relief arising from the failure of the respondent to provide requisite disclosure and answers to undertakings.

[2] The motion before me was in the course of a motion to change which has been brought by the respondent. The details of the motion to change were not provided to this court, but it appears that the applicant’s retroactive obligation to pay child support as well as s. 7 expenses are at issue as regards the post-secondary education of the three now-adult children of the parties. The applicant submitted that he required full disclosure of the children’s financial circumstances and details of their financial dependence to determine when support should have terminated and what, if any, retroactive s. 7 expenses may be owing by him.

[3] The matter of disclosure was first raised in a case conference on January 5, 2021 and an order was made. The first disclosure motion was made by the applicant dated September 13, 2021. Disclosure was ordered. A further motion was dated February 14, 2023 and a consent order was made for disclosure of items that had not been provided up to that point. Finally, this motion was made, dated October 21, 2024. In each case, after the motions were served, partial but incomplete compliance occurred. Costs of the first two motions were reserved to me as the motions judge.

[4] In my decision of March 24, 2025, I did not grant the requested order striking the pleadings of the respondent and permitting the matter to proceed to an uncontested trial, or alternatively requiring compliance with outstanding orders and answers to undertakings. I made a new disclosure order.

[5] The parties were invited to resolve the issue of costs consensually, but they were unable to do so and filed written submissions according to the timetable provided.

[6] The applicant seeks full indemnity costs of each of the three motions in the all-inclusive amounts of $9,065.98, $9,347.78, and $9,603.43 respectively, which total $28,017.19.

[7] The respondent submits that no order for costs is appropriate based on divided success, the unnecessary incurring of costs by the applicant, and the respondent’s limited ability to pay.

[8] The court’s jurisdiction to award costs is found in section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the factors to be considered in applying that discretion are as listed in rule 24(1) of the Family Law Rules, O. Reg. 114/99. As pertinent to this motion, those factors include success, which is a presumptive factor, a consideration of the reasonableness of the parties, and whether success is divided. Costs should be proportionate to the issues involved.

[9] The case law is clear that the fundamental purposes for costs orders are to partially indemnify successful litigants, encourage settlement, discourage and sanction inappropriate behaviour by litigants, and ensure that cases are dealt with justly. See, for example, Sonia v. Ratan, 2023 ONSC 982.

[10] The motion before me was full of competing allegations about whether disclosure was outstanding or alternatively that disclosure had been already provided.

[11] The duty to fully disclose financial information is one of the essential requirements in any family law litigation. The respondent submits that argument of the disclosure motions was unnecessary and notes the disclosure that was made by her in response to each of them. She submits that the applicant’s actions amounted to bullying. However, the simple fact is that had she provided disclosure with reasonable detail and completeness, there would have been no reason for the motions.

[12] While it is true that at each stage, the applicant did not receive an order mirroring all his requests, he was successful in the substance of the motions, which was to secure proper disclosure. In my view, the applicant cannot be criticized for unnecessarily increasing costs by proceeding with the motions in the circumstances. Disclosure was within the purview of the respondent. Although I accept that the respondent may not be financially well-off, it is not appropriate to use that fact as a shield against the obligation to provide disclosure and any costs consequences of failure to do so.

[13] Therefore, there will be a costs award in the applicant’s favour. There was success. The successful party need not achieve its goals on each of the heads of relief claimed for that to be the case.

[14] As to the appropriate scale, I note that there were no offers to settle. I am not satisfied that a full indemnity award with its quasi-punitive consequences is justified. A costs award on partial indemnity basis is appropriate. Those amounts including HST and disbursements in each motion are as follows: $4,389.32, $5,985.14, and $6,027.05 respectively for a total of $16,401.51.

[15] As a result, there will be a costs award that the respondent pay the applicant the sum of $16,401.51. As to the timing of payment, the order is made “in any event of the cause”, meaning that it is payable at the end of the litigation, regardless of which party is ultimately successful.

Reid J.
Date: May 1, 2025