Davids v. Davids, May 3, 1999
Davids v. Davids
Marvin Davids, petitioner/respondent by counterpetition, and
Esther Davids, respondent/petitioner by counterpetition
 O.J. No. 1565
Court File No. 3550 10401/95
Ontario Superior Court of Justice
Heard: March 31, 1999.
Judgment: May 3, 1999.
Counsel:Karen Orr, for the petitioner/respondent by counterpetition.
Kenneth Cole, for the respondent/petitioner by counterpetition.
REASONS ON COSTS
¶ 1 SHAUGHNESSY, J.: The Reasons for Judgment in this proceeding were released on July 3rd, 1998. Counsel for both parties have attended before me to make submissions concerning the disposition of costs.
¶ 2 The position of Mrs. Esther Davids is that she should be awarded solicitor and client costs from the commencement date of the proceedings. Counsel for Esther Davids submits that solicitor and client costs are appropriate in the particular circumstances of this case by reason of the following factors:
The result obtained at trial by Esther Davids was better than the offer to settle dated April 9, 1998, and which was delivered pursuant to Rule 49 of the Rules of Civil Procedure.
Counsel for Esther Davids maintains that his client is entitled to solicitor and client costs throughout the proceedings by reason of:
the conduct and bad faith on the part of Marvin Davids, including the transfer of shares and assets in the course of the litigation
the undue delay and increased expense that Esther Davids had to incur in order to refute the husband's contention that he did not have the ability to pay meaningful spousal and child support
the hardships that Marvin Davids inflicted on his family by reason of his failure to pay support
the failure of Marvin Davids to make timely disclosure of his assets and financial documentation, which in turn delayed the proceedings
¶ 3 Counsel for Esther Davids also requests that the trial judge assess and fix the costs, and that the assessment of costs should be limited to the submissions of counsel.
¶ 4 Ms. Orr, who represented Mr. Davids on the issue of costs, made the following submissions:
It is conceded that based on the Offer of Settlement dated April 9, 1998, and the results obtained at trial, that pursuant to Rule 49(10) Esther Davids is entitled to solicitor and client costs from April 9, 1998, but party and party costs prior to that date.
It is submitted on behalf of Marvin Davids that there are no special or unusual circumstances in this case that would warrant the granting of solicitor and client costs throughout. It is further argued that Mr. Davids has been severely reprimanded in the judgment by the award for arrears of support and other payments, which are set off against the entitlement to an equalization payment and accordingly, the imposition of solicitor and client costs would be the equivalent of "additional punishment" for Marvin Davids.
Counsel refers to recent authority for the proposition that the trial judge ought not to fix costs in a case as complex as the present matter.
WHETHER THE TRIAL JUDGE SHOULD FIX THE COSTS:
¶ 5 I have been referred to the recent decision of Murano v. Bank of Montreal, 163 D.L.R (4th) 21 (Ont. C.A.). Associate Chief Justice Morden, at paragraph 96, cites with approval the approach of Haines J. in Worsley v. Lichong  O.J. No. 614 (Q.L.):
"... I believe the fixing of costs still requires a critical examination of the work undertaken in order to determine that the costs claimed have been reasonably incurred and reflect what the court considers to be proper and appropriate in the circumstances, given the complexity and significance of the proceedings held up against the backdrop of full indemnification."
¶ 6 The Associate Chief Justice at paragraph 98, also refers to the reasoning of Mr. Justice D. Lane in McKinlay Transport Ltd. v. Transport Industrial Relations Bureau of Ontario,  O.J. No. 1098 (Q.L.) at paragraphs 18 to 20:
"Should the costs be fixed or assessed?
The defendants urge me to fix the costs. My experience with the case would save much time; the process would be less time-consuming than the assessment process; Trench warfare over every motion over 17 years of litigation would be avoided. The plaintiff sought an assessment submitting that although I knew about the trial, I would have no advantage as to the pre-trial period; the process would inevitably resemble an assessment, given the nature of the proceedings; the effective allocation of court resources called for the assignment of the task to the Assessment Officers. I should not force them to a summary fixing over their objections ... The costs will be very large amounts, backed by extensive records. Fixing the costs is meant to be a summary sort of procedure, and I do not think such a procedure is likely to reach a just result unless it evolves into something akin to an assessment, with the Judge reviewing the factors an Assessment Officer would review."
¶ 7 Associate Chief Justice Morden states that in his view Justice Lane provides the correct analysis of what factors ought to be considered in fixing or having costs assessed. Further, Justice Morden states (paragraph 99) that the trial judges' knowledge of the case "would become part of the assessment process through the directions to the assessment officer as provided for in Rule 57.02."
¶ 8 In the Murano case supra, it is stated (paragraph 100) "the total amount to be awarded in a protracted proceeding of some complexity cannot be reasonably determined without some critical examination of the parts which comprise the proceeding." And again it is stated, (paragraph 102) that the "general principle is that like cases should conclude with like substantive results."
¶ 9 Therefore, Justice Morden states in summary (paragraph 105) that "if it be objected that a careful review by a judge is too time consuming, then the proper course is to refer the costs to assessment."
¶ 10 Mr. Cole, counsel for Esther Davids requests that I conduct the assessment of costs because of my knowledge of the trial proceedings, that the costs of the litigation to date have ballooned by reason of the conduct of Mr. Davids, and that an assessment will only prolong the warfare of litigation that has lasted since 1994.
¶ 11 Ms. Orr maintains that Mr. Davids requires an extensive review of the costs and disbursements claimed by the wife. She advises that if and when counsel for Mrs. Davids and the accountant file Affidavits to confirm the work performed and the hours, accounts and disbursements incurred, then they will conduct lengthy cross-examinations on those Affidavits of the solicitor as well as the accountant.
¶ 12 I am advised that the bill of costs as prepared claims solicitor and client costs in the amount of $200,000 plus disbursements (principally the forensic accounting expense) of $90,000.
¶ 13 While there is merit to the argument that judicial involvement may bring an expeditious resolution of the matter, nevertheless, to quote the Murano case supra, expedience "should not be bought at the price of less than reasonable procedure."
¶ 14 Therefore, I find that when the costs reach an amount as suggested by counsel for the wife, it is imperative that the costs be assessed in detail by an Assessment Officer. In the particular circumstances of this case, something more than a summary analysis is required and the effective allocation of court resources calls for the assignment of the task to an Assessment Officer.
¶ 15 I do propose, however, to provide information concerning my knowledge of the case by way of directions to the Assessment Officer, pursuant to Rule 57.02 at the conclusion of my reasons.
PARTY AND PARTY OR SOLICITOR AND CLIENT COSTS PRIOR TO APRIL 9, 1998:
¶ 16 While counsel for Marvin Davids has conceded that Esther Davids is entitled to solicitor and client costs from April 9, 1998, as provided under Rule 49(10), the dispute between the parties is whether solicitor and client costs should be awarded from the date of the commencement of the proceedings.
COSTS IN FAMILY LAW MATTERS:
¶ 17 In Ontario, as a general principle, the courts apply the same approach to the issue of costs in family litigation as in all other forms of litigation, which is that costs will usually follow the event.
¶ 18 However, the case law establishes that success is only one of the factors to be considered in the exercise of the court's discretion (Andrews v. Andrews (1980) 120 D.L.R. (3d) 252 (Ont. C.A.)). The Andrews case identified the following factors which are to be considered in assessing costs, and which have been extensively discussed in later judgments:
The conduct of the parties prior to the commencement of the litigation, including such issues as support.
The conduct of the parties during the litigation.
The income and assets of each party, touching upon their ability to bear their own costs and the effect of an award of costs on the ability of the party to meet the obligations imposed by the Judgment.
¶ 19 It is acknowledged that it is often more likely that the court will award costs on a party and party scale. However, in some rare and exceptional cases, solicitor and client costs have been awarded. Examples of such cases are where the husband ceased to pay child support that was ordered against him (Dacey v. Dacey 33 A.C.W.S. (3d) 377 (Ont. Gen. Div.). Likewise, unwarranted delay in proceedings that can be attributed to one party (Shafer v. Shafer, 1996 67 A.C.W.S. (3d) 525 (Ont. Gen. Div.). A refusal to make proper financial disclosure in a timely fashion and being uncooperative throughout the litigation (Kuryliak v. Kuryliak,  O.J. No. 2344 (Ont. Gen. Div.). Solicitor and client costs have been awarded to a successful party after a reasonable offer to settle in accordance with Rule 49 (Hamashuk v. Hamashuk,  O.J. No. 3522 (Q.L.) (Ont. Gen. Div.); Servos v. Servos,  O.J. No. 4131 (Q.L.) (Ont. Gen. Div.).
¶ 20 I have come to the conclusion that this proceeding is one of those rare and exceptional cases where solicitor and client costs should be awarded from the date that the first interim support order was made by Mr. Justice Goodearle on May 25, 1995. In reaching this conclusion I have considered the following matters:
1. CONDUCT OF MARVIN DAVIDS DURING THE LITIGATION:
(a) Further litigation caused by Marvin Davids
¶ 21 At paragraph 9 of the Reasons for Judgment, it is mentioned that Mr. Davids took the contracts and clients of Reno-Art Construction (a company held in the name of Esther Davids), and transferred the same to his new company Renart, without the consent or knowledge of Esther Davids. This constituted an obvious breach of fiduciary duty on the part of Marvin Davids. As if that were not sufficient, he proceeded to draw on the line of credit of Reno-Art and used those funds to start-up Renart Construction. Mr. Davids made no payment on the line of credit and, accordingly, the financial institution Royal Trust commenced litigation and obtained a Judgment including costs as against Esther Davids. Perhaps what is more astonishing is that Mr. Davids maintained that if Esther Davids had paid the Judgment off he could have obtained more credit, and thereby met his support obligations.
¶ 22 Mr. Davids also forwarded an invoice to Mrs. Davids for $14,000 as a charge from Renart Construction to complete the Reno-Art contracts, yet he never paid the profit that he made on the same contracts. At trial he sought to deduct from his NFP the $14,000 liability which he suggested was owed by Esther Davids. At paragraph 10 of the Reasons for Judgment, I found that the claim for a deduction of a debt by Mr. Davids was "conceived for the purpose of unfair advantage in the equalization calculation".
¶ 23 At paragraph 11 of the Reasons for Judgment, there is referenced Mr. Marvin Davids execution of a contract with his accountant, Larry Zeifman, which made both he and Esther Davids personally liable for professional fees incurred on behalf of Reno-Art Construction. Once again Mr. Davids acted without the knowledge or consent of Esther Davids. His actions gave rise to further litigation, which involved Esther Davids as a named defendant.
¶ 24 I find that Marvin Davids involved himself in these activities in a determined and deliberate effort to financially embarrass his wife in these proceedings.
(b) Arrears of Support
¶ 25 On May 25, 1995, Mr. Justice Goodearle made an interim order requiring Marvin Davids to pay $4,000 per month as spousal/child support. In addition, he was ordered to pay all relevant third party expenses with respect to the matrimonial home. He was further ordered to pay all expenses relating to extended health coverage and all educational expenses of the children as they came due. All support payments were made retroactive to March 9, 1995.
¶ 26 On July 8, 1996, Mr. Justice McLean, after a review directed that the order of Justice Goodearle was to continue. The order of Justice McLean directed that tuition for the child Joanna, was to continue to be paid subject to an accounting by Esther Davids to the trial judge if Joanna was no longer a child of the marriage. Notwithstanding the court order, at paragraph 18 of the Reasons for Judgment it is stated:
"Regretfully, I find that the husband has been substantially in arrears of support as provided in the interim orders since they were made. The documents filed at trial as exhibits establish that as of June 8, 1998, the husband is in arrears of child and spousal support in the amount of $64,313.09. Whatever payments have been made since the first interim order have been by garnishments through the Family Responsibility Office. The husband has paid support primarily by causing his company to remit $625 to the FRO every two weeks on the pretext that this represents one-half of his net salary from the company".
¶ 27 There are other payments, which are detailed in paragraphs 18, 19 and, 20 of the Reasons for Judgment.
¶ 28 The position of Mr. Davids at trial was that the arrears of support were the direct result of "too rich an interim order being in place". (See paragraph 22 of the Reasons for Judgment).
(c) Imputed Income and Extensive Forensic Accounting Evidence
¶ 29 Mr. Davids alleged that his income in the year 1997 was only $14,000, (see paragraph 14 of the Reasons for Judgment).
¶ 30 A very significant amount of time at trial was taken up by the forensic accounting evidence in order to assess the viability of Marvin Davids' position concerning financial incapacity. Numerous financial documents and accounting reports were undertaken to determine Mr. Davids actual income.
¶ 31 As detailed in the Reasons for Judgment, if Mr. Davids had filed accurate and reliable income tax returns and Form 69K Financial Statements, then the need for five extensive forensic accounting reports would have been eliminated. However, the evidence at trial established that the income tax returns filed were not an accurate reflection of income available to Mr. Davids from the date of separation. In nine Form 69K Financial Statements delivered by Marvin Davids in the course of these proceedings he represented his income anywhere from $56,664 to $140,353. Notably, financial statements before the two interim motions for support and the last one delivered before trial indicated significant decreases in his income from previous financial statements. The fact that he delivered a financial statement shortly before trial that significantly decreased his income, made the entire forensic accounting evidence necessary, and this in turn significantly increased the time required for the trial. It also significantly increased the costs of the trial as far as Esther Davids is concerned.
¶ 32 At paragraph 32 of the Reasons for Judgment, the five reports of the forensic accountant are detailed, and the purpose of these reports was to estimate the income over which Marvin Davids had access and control for the years 1993, 1994 and 1996. Suffice to say that this involved a very lengthy and exhaustive investigation, necessitated by the position taken by Marvin Davids that he was financially incapable of making support payments.
¶ 33 The analysis of Mr. Davids income is provided at paragraphs 34-52 of the Reasons for Judgment. There is a specific finding at paragraph 52 of the reasons that Marvin Davids has an imputed income of $168,000 each year for all of the relevant years since the date of separation. Accordingly, there was no merit in his defence that his business was failing, or that he did not have the ability to pay support. Indeed the evidence is to the contrary. His business has flourished since 1994, and he expanded the plant and labour force.
¶ 34 The findings relating to the vacations and lifestyle of Mr. Davids (paragraph 58 of the reasons) at a time when he was significantly in arrears of support, are yet a further factor that I have taken into consideration in assessing conduct during the course of the proceedings.
¶ 35 There is also a specific finding at paragraph 60 of the reasons, that with an imputed income of $168,000 there was no reasonable basis for breaching the terms of the interim orders.
(d) Other Indebtedness & Defaults Occurring by Reason of the Actions of Marvin Davids
¶ 36 There are other defaults and resulting litigation which occurred during the course of this proceeding. At paragraphs 62 & 65 of the Reasons for Judgment, there is detailed the default in the payment of the mortgage and taxes on the matrimonial home (which was provided for under the order of Justices Goodearle and McLean). As a result of the default, the first mortgagee commenced Power of Sale proceedings. Eventually, Mrs. Davids had to borrow funds and re-finance through a private lender to put the mortgage and taxes into good standing. A summary of all of the arrears and expenses incurred by Esther Davids by reason of the default of Marvin Davids, are detailed at paragraph 100 of the Reasons for Judgment, and which total the sum of $132,211.68.
e) Transfer of Assets
¶ 37 Mr. Davids transferred the shares and assets of Renart to his parents before the trial. This complicated the calculation of the value of these assets, and it was done with the admitted purpose of defeating any ability of the wife to seize assets to pay arrears of support. (See paragraph 108, 109 & 110 of the Reasons for Judgment). At paragraph 115 of the Reasons for Judgment it is stated that Marvin Davids' transfer of the shares to his parents as well as his automobiles to his father and the employment agreement that he entered into with his parents all were indicative of non arms length transactions which were designed for no other purpose than to defeat the seizure and sale of assets by reason of non payment of support.
(f) Artificial Indebtedness
¶ 38 The Reasons for Judgment (paragraphs 102 & 114) detail that a further complicating and delaying factor at trial was the attempt by Marvin Davids to introduce what must be described as artificial debts created by the husband for no other purpose than to embarrass his wife in these legal proceedings.
¶ 39 In summary then, (paragraph 135 of the Reasons for Judgment) it is a finding of this court that regretfully Mr. Davids "has unequivocally demonstrated a profound lack of consideration for his family ... he has deliberately diverted assets ... and he has consistently manipulated both his income and assets for no other purpose than to defeat court orders".
2. CONDUCT DURING THE COURSE OF TRIAL:
¶ 40 It is a finding of this court that Mr. Davids' testimony at trial was replete with fabrications and deception. Often his answers were unresponsive to the questions or deliberately evasive. It was found that Mr. Davids feigned misunderstanding and he purposely attempted to mislead the court concerning his income and assets.
3. OFFERS OF SETTLEMENT & ATTEMPTS TO RESOLVE THE ACTION PRIOR TO TRIAL:
¶ 41 Counsel for Esther Davids produced an extensive brief, which details the various and numerous attempts that were made to settle this action. It appears that as far back of July 13, 1994 (well before the Petition for Divorce was issued), there was a four hour meeting to discuss proposals for settlement. Mr. Davids changed lawyers in August, 1994. The Petition for Divorce was issued by Marvin Davids on February 28, 1995.
¶ 42 There was a further four hour settlement meeting on April 12, 1995, wherein Mrs. Davids provided a list of proposals for settlement. It appeared, at least to Mrs. Davids' counsel that the parties were very close to a settlement at that time. A separation agreement was drafted on May 8, 1995. However, unexpectedly, Mr. Davids had his counsel deliver an Answer to the Counter-petition.
¶ 43 Accordingly, with all settlement negotiations terminated by Mr. Davids, the interim support application proceeded before Justice Goodearle. As previously indicated, Mr. Davids was in arrears on that interim order almost from the date of the commencement of the order.
¶ 44 The forensic accountant, Mr. Neil Maisal, was retained in or about July 14, 1995 by Esther Davids.
¶ 45 The examinations of Marvin Davids were scheduled and cancelled 13 times between August, 1995 and November, 1995, either because Mr. Davids requested an adjournment or he was not disclosing information requested of him by Mr. Maisal. Mrs. Davids was examined for 6 hours on September 19, 1995.
¶ 46 The examination of Mr. Davids was completed on December 7, 1995 and March, 1996.
¶ 47 There was an unsuccessful attempt at mediation with Rabbi Stern, from December, 1995 to February, 1996.
¶ 48 Mr. Davids made a settlement proposal in March, 1996, which inter alia provided for child support of $3,000 per month (tax deductible) and spousal support of $2,000 per month reviewable twice yearly, and time limited to five years from the date of separation. Esther Davids made a counter proposal on April 18, 1996, which inter alia provided for child support of $3,000 per month net of tax and spousal support of $2,500 per month until remarriage, indexed to the cost of living.
¶ 49 On August 6, 1996, Mr. Davids directed his then lawyer to deliver a further offer to settle. This time the proposal was $2,250 per month child support, tax deductible, and spousal support of $2,000 per month reviewable twice yearly and time limited to five years from the date of separation.
¶ 50 There are numerous other details to the various offers exchanged, however, I have chosen to highlight the support issues as they appear to be the most contentious.
¶ 51 This action was pre-tried before Madam Justice Boyko for 5 hours on September 30, 1996, and the matter was placed on the trial list for February, 1997.
¶ 52 It is Mr. Cole's submission, that after the pre-trial counsel met and an outline of essential terms was formulated. At this point in time, Esther Davids had lowered her demands and she was willing to accept $2,500 for child support and $2,500 for spousal support. All support was to be tax deductible by the husband. The parties were to pay tuition and education expenses of the children proportionately. The proceeds of the sale of the home were to be divided equally; however, the arrears of support and outstanding home expenses were to be paid out of the husband's net share of the proceeds of the sale of the home.
¶ 53 In or about October 9, 1996, Mr. Davids again changed solicitors, and on October 18, 1996, the husband's new lawyer was proposing arbitration. As a condition for the arbitration, Mrs. Davids' counsel secured four months of support payments, paid into a trust account by Marvin Davids. A Dispute Resolution Agreement relating to the arbitration was drafted and executed on March 11, 1997. Mr. Stephen Grant was retained by the parties to mediate and arbitrate a settlement, and the first meeting was held in June, 1997. During this period of time, default in the payment of the first mortgage occurred. With the passage of time Mr. Maisal was required to conduct further investigations and provide updated reports. The mediation sessions with Mr. Grant were never completed.
¶ 54 The original trial date was adjourned, pending the arbitration/mediation process. On September 25, 1997, the matter proceeded to an Assignment Court and a trial date was set for May 18, 1998.
¶ 55 Throughout the Fall of 1997, Mr. Maisal sent letters (see Tabs 33-38 inclusive of Petitioners Brief on Costs), which detail the lack of co-operation concerning disclosure and the hindrances that Mr. Davids caused to impede Mr. Maisal in his investigations.
¶ 56 In December, 1987, Marvin Davids had his then solicitor prepare a draft separation agreement. This draft agreement provided inter alia that the parties would equally share the equity in the home. Child support for all four children was to be in the amount of $3,200 or $2,698 for 3 children. Spousal support was to be in the amount of $1,300 per month, with no review until January, 2001. The draft agreement had a provision that there was not to be any arrears of support prior to January 1, 1998. The matrimonial home was to be sold, and until the date of sale the wife was to pay 75% of the household costs. The husband was also to be permitted to use the home as collateral for any loans that he wished to secure, pending the sale of the home.
¶ 57 Once again, I am not attempting to detail every term of that draft agreement.
¶ 58 Counsel produced a plethora of documents and letters, and I have only commented on a few of the items. What emerges is a view of how Mr. Davids instructed his various legal counsel to conduct this litigation. Whenever this matter got close to settlement, and Esther Davids reduced her demands, Mr. Davids backed away and delivered pleadings or changed counsel. His proposals for settlement became less as time went on, and I cannot help but conclude that he had no intention of settling the proceeding until Esther Davids had accepted every one of his positions on his terms. His actions and the positions taken then suggest a complete lack of appreciation for what is reasonable and necessary in the particular circumstances of his family.
¶ 59 In summary, I find as yet another factor in determining whether to assess solicitor and client costs, that meaningful steps to settle the case were not taken by Marvin Davids in a timely fashion.
¶ 60 The lack of adequate and timely disclosure throughout the proceeding by Marvin Davids is particularly troublesome. Madam Justice Aitken, in Kuryliak v. Kuryliak,  O.J. No. 2344 at paragraph 10 has stated the importance of disclosure in family law proceedings:
"The refusal or neglect to make proper financial disclosure in a timely fashion and as required under the Rules of Civil Procedure, has several consequences. It perpetuates and fuels a feeling of mistrust between the parties, and from a psychological perspective makes settlement discussions very difficult. From a practical perspective, it precludes meaningful settlement negotiations from occurring prior to trial. Certainly, the party who has not received proper financial disclosure is not in a position to make timely settlement offers. Costs are incurred because various interim motions may have to be brought for the purpose of requiring better disclosure. The trial is lengthened as disclosure occurs on the spot for the first time. Litigants arrive in court not knowing what to expect, and what issues, if any, may be capable of resolution."
¶ 61 Accordingly, I find that Marvin Davids has, throughout these proceedings, failed to make adequate and timely disclosure which has resulted in significant forensic accounting expenses incurred by Mrs. Esther Davids.
4. INCOME & ASSETS OF MR. DAVIDS AND THE EFFECT OF AN AWARD OF SOLICITOR AND CLIENT COSTS:
¶ 62 Notwithstanding the conduct of Mr. Davids as noted, and the lack of good faith in terms of settlement negotiations, it is still necessary to assess the income and assets of each party, the relative means of each party to bear his or her own costs, and the effect of an award of costs on the ability of Mr. Davids to meet the obligations imposed by the judgment (see Andrews v. Andrews supra at page 36).
¶ 63 In exercising my discretion as to costs, it is apparent that there are a number of factors and competing policy considerations in determining the effect of a cost order. However, the costs that Mrs. Davids is facing are enormous, and I find that the actions and positions taken by Marvin Davids was the direct cause of those costs being incurred. Mr. Davids was provided several opportunities to settle this proceeding through meetings, and/or by mediation, and/or arbitration. In the circumstances, it would be unreasonable to burden Mrs. Davids with the costs of proceedings necessitated by the conduct and positions taken by Mr. Davids.
¶ 64 I have made findings that Mr. Davids had access and control of an imputed income of at least $168,000 per year. His business is growing and flourishing and therefore I conclude that he has the necessary resources available to pay the solicitor and client costs without affecting in any significant way the obligations imposed by the Judgment.
¶ 65 It is therefore ordered that Marvin Davids will pay Esther Davids solicitor and client costs from May 25, 1995, and party and party costs prior to that date.
QUANTIFICATION OF TIME SPENT AT TRIAL
¶ 66 The Reasons for Judgment detailed that I would comment further on the issue of the amount of time spent at trial concerning spousal and child support issues.
¶ 67 The history of the proceedings prior to trial as detailed above, substantiates that a very significant portion of the time and expense in the litigation and settlement negotiations as well as arbitrations were directed to the issue of spousal and child support. Almost all of Mr. Maisal's reports and evidence at trial related to that issue.
¶ 68 Therefore, I find that 70% of the costs to be awarded in this proceeding are attributable to Esther Davids efforts to secure child and spousal support.
DIRECTIONS TO THE ASSESSMENT OFFICER PURSUANT TO RULE 57.02
¶ 69 It has been suggested by counsel for Marvin Davids that they propose to cross-examine on the Affidavits filed by the solicitor and the accountant in respect of accounts and disbursements incurred in these proceedings.
¶ 70 I would direct that the following procedure be adopted to facilitate a reasonable, cost-effective and expeditious assessment:
The solicitor and accountant will deliver an Affidavit which details the work and services performed, as well as the dates and times involved. Attached to the Affidavits will be all documentation in the nature of accounts rendered, work performed, as well as time dockets. The Affidavits should also detail the hourly rate being charged.
The solicitors for Marvin Davids will then be permitted 30 days from the receipt of the Affidavit and documentation referred to in paragraph 1, to provide written inquiries and requests for further information and documentation that they consider necessary.
Counsel for Esther Davids will respond to the inquiries referred to in paragraph 2, in writing, within 30 days of the receipt of the letter requesting further information.
It is anticipated that there will be one request for further details and information, and one response to those inquiries as provided under paragraphs 2 & 3 above.
After compliance with paragraphs 2 & 3 above, and in the event that counsel for Marvin Davids determines that it is necessary to cross-examine either the solicitor or the accountant or both on their Affidavits, then a formal motion is to be brought before me on a date to be arranged with the Trial Co-ordinator at Whitby.
¶ 71 As a further direction to the Assessment Officer, I wish to advise that all of the accounting reports prepared by the Accountant, Neil Maisal, were served and the information contained therein was introduced at trial. All of the accounting evidence and reports were necessary at trial. Further, there was an attendance before me on March 31, 1999, which related to settling the form of the Judgment, as well as extensive submissions concerning costs. The attendance on March 31, 1999, took almost the entire day.
¶ 72 If further directions are required, the parties may contact me.