Superior Court of Justice – Ontario

Court File No.: FS-19-00042740-000
Date: 2025-06-02

RE: Karen Kininsberg, Applicant/Respondent on Appeal
AND: Joshua Samuel Meerapfel, Respondent/Appellant on Appeal

Before: Justice E. Ria Tzimas

Counsel:
Stephen J. Codas & Sarah Strathopolous (scodas@epsteincole.com / sstrathopolous@epsteincole.com), Counsel for the Applicant/Respondent on Appeal
Bruno Sharpe (bsharpe@galarneauassoc.com), Counsel for the Respondent/Appellant on Appeal

Costs Endorsement

Introduction

[1] This is my costs ruling for two separate motions and decisions rendered on October 14, 2024 and December 17, 2024.

[2] Both motions were brought by the Respondent, and both were dismissed with costs ordered in favour of the Applicant. The first motion challenged this court's jurisdiction over the parties' property claims, see: 2024 ONSC 5712. The second motion sought leave to appeal the Arbitrator’s email communication, purporting to explain the responsibility for translation costs. The Arbitration Award was not challenged, see 2024 ONSC 7086.

[3] The parties were provided with the opportunity to make costs submissions in writing. Following their review, I delayed the release of my decision, as I was left with the impression that the parties were interested in scheduling a settlement conference. The prospects of a possible global settlement caused me to believe that a costs award might undermine those efforts. Following inquiries by the court of both parties, it became evident that there was no such prospect and interest and accordingly, I proceeded to write my decisions.

[4] For the reasons that follow, on the jurisdiction motion I award the Applicant costs of $48,500. On the leave motion, I award the Applicant costs of $16,500. Both sums are payable within 30 days from the date of this order. In my analysis, I review the general guiding principles and then consider each motion separately.

Guiding Legal Principles

(i) General Principles

[5] 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 subrule 2(2) of the Family Law Rules. See: Mattina v. Mattina, 2018 ONCA 867. Costs may also be used to sanction behaviour that increases the duration and expense of litigation or is otherwise unreasonable or vexatious. It is recognized that courts may employ the power to order costs as a tool to promote the efficient and orderly administration of justice. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para 25.

[6] Subrule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. The first question to address is whether a party has been successful, see Sims-Howarth v. Bilcliffe. To answer that question the court may consider the positions taken in the litigation, see: Lazare v. Heitner, 2018 ONSC 4861. This assessment may include 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 outcome in court compares to any settlement offers that may have been exchanged, see: Lawson v. Lawson; Todor v. Todor, 2021 ONSC 3463; G.E. v. J.E., 2023 ONSC 1743.

[7] Where settlement offers have been exchanged, subrule 18(14) of the Family Law Rules provides guidance on how they may be considered in the awarding of costs:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.
2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
3. The offer does not expire and is not withdrawn before the hearing starts.
4. The offer is not accepted.
5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[8] The onus of proving that the offer is as or more favourable than the trial result is on the person making the offer. See: Neilipovitz v. Neilipovitz [2014] O.J. No. 3842 (SCJ). The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v. Kovalev, 2016 ONSC 163.

[9] An outcome that is close to an offer to settle is not good enough to attract the costs consequences of 18(14). The offer must be as good or more favourable than the trial result. However, even if the offer does not attract the costs consequences set out in subrule 18(14), it may be considered under subrule 18(16). Gurley v. Gurley, 2013 ONCJ 482.

(ii) Quantum of Costs – Reasonableness and Proportionality

[10] If there is liability for costs, the next issue to determine is the quantum. That determination is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918 at para 94.

[11] Subrule 24(12) of the rules provides:

24(12) In setting the amount of costs, the court shall consider, (a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: i. each party's behaviour, ii. the time spent by each party, iii. any written offers to settle including offers that do not meet the requirements of rule 18, iv. any legal fees, including the number of lawyers and their rates, v. any expert witness fees, including the number of experts and their rates, vi. any other expenses properly paid or payable; and (b) any other relevant matter.

[12] Beaver v. Hill, 2018 ONSC 3352 is currently the leading authority on the assessment of costs within a family law matter. At paragraphs 39-40, having regard for Rule 24 and the principles discussed in cases such as Serra, Boucher v. Public Accountants Council (Ontario), and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, the court summarized the guiding principles to the determination of quantum:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.
3. Amounts actually incurred by the successful litigant are not determinative.
4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.

(See also Selznick v. Selznick, 2013 ONCA 35; Delellis v. Delellis; Hackett v. Leung.)

[13] The court then reviewed the case law since Serra and highlighted the need for the court to consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation (Lupien v. Carmichael, 2017 ONSC 2929; Darling v. Booth, 2017 ONSC 6261 at para 12). Referencing Sommerard v. I.B.M. Canada Ltd., the court highlighted the observation that costs quantification was not a “mechanical exercise of calculating hours times hourly rates”, but one of assessing “the reasonableness of the counsel fee from the perspective of the reasonable expectation of the losing party”.

[14] A useful benchmark may be to consider the amount the unsuccessful party paid for their own legal fees for that same matter. See: Smith Estate v. Rotstein, 2011 ONCA 491; Durbin v. Medina, 2012 ONSC 640; Scipione v. Del Sordo, 2015 ONSC 5982; Zhang v. Guo, 2019 ONSC 5767; Laidman v. Pasalic and Laidman, 2020 ONSC 7068.

[15] Subrule 24(12.2) provides that a party who opposes a claim for costs respecting fees or expenses shall provide documentation showing the party's own fees and expenses to the court and to the other party. An adverse inference may be drawn against the party who fails to provide such documentation. See: S.W.-S. v. R.S., 2022 ONCJ 11; M.H.S. v. M.R., 2022 ONCJ 28; Kasmieh v. Hannora, 2023 ONSC 1643; Morsillo v. Quartarone, 2022 ONCJ 591.

[16] Subrule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(1) above). It reads as follows:

DECISION ON REASONABLENESS
In deciding whether a party has behaved reasonably or unreasonably, 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.

[17] Like all litigants, family litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141. The reasonableness of the parties' positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of the justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy. See: Weber v. Weber, 2020 ONSC 6855. Conduct which unduly complicates or unduly lengthens and increases the cost of a proceeding constitutes unreasonable conduct under subrule 24(4). See: Goldstein v. Walsh, 2019 ONSC 3174; Hutchinson v. Peever, 2021 ONSC 4587; Jackson v. Mayerle, 2016 ONSC 1556.

(iii) Bad Faith Conduct

[18] Subrule 24(8) of the rules states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. A bad faith finding on some specific issue does not necessarily have a spill-over effect to other issues. Hunt v. Hunt [2001] O.J. No. 5111 (SCJ).

[19] Bad faith requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ). There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. See: S.(C.) v. S.(M.). Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction, or obfuscation. See: Scipione, supra.

[20] Finally, even where the "full recovery" provisions of the Rules are triggered—either by an offer which meets Rule 18(14) requirements, or by a finding of bad faith, the quantification of costs still requires an overall sense of reasonableness and fairness. Goryn v. Neisner, 2015 ONCJ 318. The Rules do not require the court to allow the successful party to demand a blank cheque for their costs. Slongo v. Slongo, 2015 ONSC 3327. The court retains a residual discretion to make costs awards which are proportional, fair, and reasonable in all the circumstances. M.(C.A.) v. M.(D.); Scipione v. Scipione, 2015 ONSC 5982. See: Jackson v. Mayerle, 2016 ONSC 1556.

[21] With these principles in mind, I turn to my consideration of each motion and the respective costs submissions.

Jurisdiction Motion

[22] As already noted, the Applicant was entirely successful in her opposition to the Respondent's motion. The issues raised were important and complex. The legal framework for the determination of jurisdiction is multi-faceted and engages both statutory and common law considerations. It requires a detailed and deep understanding of evidence and law. The parties also led expert evidence from Belgian counsel on Belgian law and the interpretation of two decisions of the Belgian Court and the Brussels Court of Appeal on the jurisdiction of these parties' various claims.

[23] In his costs submissions, the Respondent complained that the outcome of the motion resulted in a duplication of proceedings and that this should be taken into account when considering costs. My reasons in my decision on forum non conveniens at paragraphs 79-80, as well as my findings at paragraphs 75-78 offer a complete response to that argument. The submission is rather misleading and ignores the implications of a duplication of effort on the Applicant had the Respondent been successful.

[24] To be clear, there was nothing unreasonable in the Applicant's opposition to the Respondent's motion. As to the Respondent's behaviour and position on the motion, I am not troubled by his attempt to seek to litigate the property issues in a forum that might result in a "better" outcome for him. Most litigants pursue a litigation strategy that is designed to yield for them the best possible outcome. When their actions are undertaken in good faith, there is no problem with being strategic.

[25] What was troubling with the Respondent’s behaviour was his intentional attempt to downplay the findings of the Belgian courts on the parties’ residence location and effectively re-argue that the parties’ last common habitual residence was in Belgium. Except that the Belgian courts could not have been clearer: the Respondent's "habitual residence" and the Respondent’s "last conjugal residence" was in Ontario. The Respondent’s revisionism amounted to bad faith, wasting both the Applicant’s and the court’s time and resources.

[26] As for the Belgian court's jurisdiction over the liquidation of the parties' matrimonial regime, as I noted at paragraph 61 of my reasons, the Respondent's submissions were misleading and revealed a deliberate attempt to cause delay and inflict substantial financial hardship on the Applicant by causing her to incur significant legal costs. I stand by my concern expressed at paragraph 80 of my decision that this motion was designed to put strategic financial pressure on the Applicant.

[27] Regrettably, the Respondent’s sophistry extended into his costs submission where he argued that he and the Applicant were ad idem that the children's habitual residence is in Canada. It is difficult to know what to make of this submission when one of the primary remedies he sought on this motion was "a declaration that in accordance with s.15 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA), the parties' last common habitual residence before separation on October 15, 2018 was Belgium."

[28] Absent other considerations in relation to the Applicant’s costs claim, given the Respondent’s approach to his submissions, I would be awarding costs against the Respondent on a full indemnity basis.

[29] On the issue of the Respondent's insistence that the motion be conducted as a bilingual hearing, French-English, I am hard pressed to accept the Applicant's submission that the Respondent is using language as a "weapon". French is one of Canada's official languages. Sections 125 and 126 of the Courts of Justice Act, R.S.O. 1990, c. C.43 set out the requirements for bilingual hearings.

[30] On the one hand, I recognize that the Respondent is fully bilingual, he had no difficulty engaging in English during his attendance on the jurisdiction motion, his past court attendances have occurred in English, and all his preceding filings, including pleadings, conference briefs, affidavits, and factums, were filed in English. These circumstances, combined with his less than forthright litigation strategy and tactics attract greater scrutiny over his motivation to insist on a French-English hearing four years into the case.

[31] On the other hand, at least for the jurisdiction motion, I found it exceptionally helpful to be in a position to review the Belgian Court decisions in the original French language and to receive the Respondent’s submissions in French. It enabled me to consider the nuances in the Belgian decisions with greater precision. Hearing the Respondent’s submissions in French also allowed me to be certain about his position; he could not very well suggest at a later date that he was misunderstood. Had the motion been heard in English with French translation, and if the judge were not bilingual, they may not have had the full benefit of understanding the nuances in the respondent's submissions.

[32] Against these linguistic tensions, it is not unreasonable for litigants to prefer to participate in their mother tongue, especially when the stakes are high, as is the case with the financial aspects of the property claims. To characterize language selection as a “weapon” is rather rich. That said, insofar as the Respondent's requirement that the proceeding be bilingual results in additional costs for the Applicant, that concern can be a consideration in her overall determination of quantum.

[33] But that in and of itself raises questions about the Applicant’s corresponding ability to engage in French and the implications of that on costs. There was no dispute that the Applicant is just as bilingual as the Respondent. In addition, although the Applicant's counsel said he did not practice in French and required everything to be translated into English, on his firm's website he is promoted as somebody who "speaks and reads French (conversational)." I don’t know what is meant by “conversational” but in the context of promoting one’s professional qualifications and services, I also don’t know why somebody would refer to their language skills at all if they were not able to provide services in that language. Between a client who is fully bilingual and a lawyer who has conversational French, I understand the requirement that the Belgian decisions be translated, and possibly the factums. However, I highly doubt that “everything” would have to be translated, especially to the extent suggested by counsel.

[34] Turning specifically to quantification, the Applicant claims costs of $59,452.13 on a full indemnity basis. Those costs on a substantial indemnity basis come to $44,589.09 (75%) and on a partial recovery basis at $35,671.28 (40%). The Respondent's costs on a full indemnity basis come to $27,015.55. They are reduced to $21,612.44 on a substantial indemnity basis, and $8,915.13 for partial indemnity (at 33%).

[35] Although there is a substantial difference in the fees, when one compares the hours spent on this motion, the difference is not that pronounced. The Applicant's counsel reported a total of 88 hours of counsel time. The Respondent's counsel reported 73.90 hours of counsel time. As between the two sides, there is a difference of 14.30 hours. The hour differential is explained by the Applicant’s need to respond to the Respondent’s numerous arguments.

[36] From a reasonableness perspective and the requirement that the court consider the expectations of the losing party, the hours spent are not all that different. The pronounced difference between the two bills of cost is explained by the pronounced difference in the hourly rates; the Applicant counsel hourly rates are significantly higher than the Respondent counsel fees. Viewed in that light, the Applicant counsel fees, in and of themselves, are not out of the ordinary for very senior counsel with their level of expertise in Family Law. But with that level of expertise, I would have expected the hours billed to the Applicant to be lower than what was reported.

[37] On a closer look at the Applicant's Bill of Costs, the numerous references to email and telephone communications between counsel Codas and Strathopolous suggest at least some duplication. As for the references to the numerous communications with the client, it is far from clear that those communications concerned the jurisdiction motion, as opposed to other activities on the file. There is insufficient detail to be able to find with any confidence that the hours claimed were all in relation to the motion in question. In such circumstances, it is reasonable that the hours claimed be modestly reduced.

[38] On the subject of French, the hours spent disputing that issue is off-putting, given the requirements of the CJA and result in a further downward reduction in the costs claimed. Although I appreciate Justice Mills' endorsements on the parameters for a bilingual hearing and the Applicant’s corresponding arguments, a request to vary that endorsement may have been granted. In the specific context of this motion, for the reasons already discussed, the request for a bilingual hearing was not all that unreasonable.

[39] As to the overall proportionality between the issues in dispute, the overall reasonableness and expectations, and the outcome, the full indemnity costs are high. Given the experience of counsel, I would have expected fees to be in the range of $42,000 to $50,000.

[40] Finally, the Applicant's offers to settle the motion were reasonable. The outcome on the motion was as favourable as the Applicant's offer. I accept that her offers met all the criteria of Rule 18(14).

[41] All told, having regard to my foregoing findings and concerns, I fix costs at $48,500 inclusive of HST. This figure places the award at a slightly higher level than the substantial indemnity range. In doing so, it takes into account my concerns with quality of the Respondent’s submissions, but it also responds to my concerns with expertise, proportionality or effort, some duplication, and my concerns with the “French” issues. The award is intended to send a strong message to the Respondent that although the issues he raised were complex, his attempts to mislead the court was at best unfortunate. Finally, it recognizes the Applicant's attempt to settle the motion and avoid the costs of litigation.

Leave to Appeal Motion

[42] The second motion was submitted in writing in August 2024. In that motion, the Respondent sought leave to appeal an email explanation provided by an Arbitrator in the context of an Arbitration Award he made on December 22, 2023. The leave application was dismissed on December 17, 2024. The parties were invited to submit costs submissions if they were unable to come to an agreement. Submissions were received in January 2025.

[43] This motion could not have been more ill-advised. For the reasons already discussed in my endorsement of 2024 ONSC 7086 there was no foundation to the proposed appeal and no right of appeal from an e-mail communication. The only plausible explanation for this move is one related to tactics and an attempt to delay and cause intentional financial hardship to the Applicant.

[44] The motion was not complex. The rules applicable to leave applications are well-known. As much as the Applicant's counsel raised five substantive and technical arguments to oppose the Respondent's motion, experienced counsel should not have had to invest significant time to oppose a motion that lacked any foundation. Perhaps unwittingly, counsel for the Applicant may have complicated the leave application and given it far greater credibility than it deserved.

[45] I do accept the Applicant's submission that the motion represented "another strategic attempt" by the Respondent to delay the arbitration and his disclosure and financial obligations. That concern ties directly into the Respondent's unreasonable conduct. Simply put, it was unreasonable for the Respondent to pursue permission to appeal an e-mail communication.

[46] Turning specifically to quantum, the Applicant claims costs of $25,473.03 for full recovery, $19,104.77 for substantial recovery, and $15,283.82 for partial recovery. The Respondent's counsel claimed $5,813.85 for full indemnity. As between the two sides, the Respondent's counsel reported 21 hours for the leave motion, as compared to 38 hours reported by the Applicant's counsel.

[47] In this instance, as much as the Respondent was unreasonable in bringing his leave motion, the 38 hours spent by the Applicant to oppose it is high. Counsels’ expertise should have enabled them to respond in a nimbler manner. In addition, as with the Bill of Costs for the jurisdiction motion, this Bill of Costs suggested some duplication of effort as between counsel.

[48] Having regard for what is fair and reasonable, what is proportional to the issues to be addressed, and the outcome of the motion, I fix costs at $16,500 inclusive of disbursements and applicable taxes.

Conclusion

[49] The costs of $48,500 and $16,500 are payable by the Respondent to the Applicant within 30 days of today’s decision.

[50] If the parties are not interested in any case management, the next formal step to be taken is for the parties to schedule a settlement conference. Once that is complete, if there is no settlement, the matter should proceed to Assignment Court where the parties would obtain a date for a Trial Management Conference, to be followed by a trial.

Justice E. Ria Tzimas
Date: June 2, 2025