Court File and Parties
DIVISIONAL COURT FILE NO.: DC-19/1161
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Raikes, Corbett and Myers JJ.
BETWEEN:
Dorothy Elizabeth Creighton
Applicant
(Respondent in Appeal)
– and –
David Neil Creighton
Respondent
(Appellant)
Raymond A. Goddard, for the Applicant (Respondent in Appeal)
S. Lawrence Liquornik, for the Appellant (Respondent)
HEARD: September 24, 2019
Reasons for Judgment
Mr. Justice R. M. Raikes
Reasons for Judgment
1The appellant appeals from the order of Justice Nicholson dated October 12, 2018. Nicholson J. ordered interim without prejudice spousal support payable by the appellant husband as a term of an adjournment of a scheduled settlement conference. The quantum of spousal support was based on the appellant’s 2017 T4.
2The appellant argues that Nicholson J. lacked authority to make a substantive order of spousal support at a settlement conference. He relies upon Rule 17(8) of the Family Law Rules. The motion judge did so without a motion for spousal support or sworn evidence as to the appellant’s income.
3The respondent served her settlement conference brief late. It contained various calculations of child and spousal support based on the appellant’s 2017 income per his T4. He had not provided his T1 General nor his Notice of Assessment.
4The appellant filed nothing for the settlement conference. Instead, he asked for an adjournment. This was the second such adjournment sought and obtained by him. It was clear that he had not provided the required financial disclosure and when confronted with detailed submissions by respondent’s counsel as to non-disclosure, appellant’s counsel elected not to engage. He merely disagreed with the numbers she put forward for income.
5In her Confirmation Notice, respondent’s counsel clearly indicated that she was seeking spousal support as a term of the adjournment. In doing so, she was relying on his 2017 T4.
6It is evident that Nicholson J. believed that the appellant was non-compliant with his disclosure obligations and the adjournment request was a stratagem for delay. He was well placed to draw that conclusion. Counsel for the appellant agreed in oral submissions with that inference from the endorsement made.
7We agree with the view held by the conference judge.
8The settlement conference never started. The time spent focused on the opposed adjournment and the terms for same. The order made is a term of an adjournment, not an order made on the settlement conference under R. 17(8). While there were other options open including a costs order, making the return date of the settlement conference peremptory etc., the judge has a broad discretion as to the terms of an adjournment, particularly where, as here, one party is delinquent in his financial disclosure and that party is unfairly delaying the progress of the proceeding.
9The order made was without prejudice. The T4 relied upon by Nicholson J. was produced by the appellant and its correctness is not disputed. Appellant’s counsel had the opportunity to advise that the appellant’s income was unusually high in 2017 but did not. He would have been in a position to show that fact if his client had made the required financial disclosure. Again, it seems that deliberate strategic choices were made.
10In our view, the term of the adjournment in dispute lies within the broad discretion of the judge although we would caution that it is one that should be used sparingly. Accordingly, we dismiss the appeal.
Costs
11The appellant asked for costs of $21,000 on a partial indemnity basis. He advised that his costs were $28,000 for the appeal itself. The respondent’s costs were more modest, and frankly more appropriate for the issues engaged by this appeal. She seeks costs of $14,000 of a substantial indemnity basis or $9,000 on a partial indemnity basis.
12We note that this matter is scheduled for trial in November 2019. The parties have expended more than $40,000 fighting over an issue that will be sorted out and adjusted at trial. The order for spousal support was without prejudice. The economics of the appeal make no sense.
13In our view, the respondent should have her costs of the appeal fixed at $14,000. The appellant’s appeal strikes us as a continuation of the tactics employed to seek the adjournment and are to be discouraged.
Justice R. M. Raikes
I agree _______________________________
Justice D. L. Corbett
I agree _______________________________
Justice F. Myers
Released: October 11, 1019
CITATION: Creighton v. Creighton, 2019 ONSC 5706
DIVISIONAL COURT FILE NO.: DC-19/1161
DATE: 20191011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Raikes, Corbett and Myers JJ.
BETWEEN:
Dorothy Elizabeth Creighton
Applicant
(Respondent in Appeal)
– and –
David Neil Creighton
Respondent
(Appellant)
REASONS FOR JUDGMENT
Released: October 11, 2019