R. Ian Robertson

The court issued a final costs endorsement in a family law matter.

The respondent had successfully moved to set aside a previous order, which had included a full indemnity costs award against her.

The court reduced the original costs payable by the respondent from $12,000 to $6,000, finding her initial non-participation inadvertent.

However, the court denied the respondent's request for costs for her successful motion to set aside the order, ruling that she had received an "indulgence" for her oversight, which precluded her from recovering costs.

Ultimately, no costs were awarded to either party for the proceedings subsequent to the initial May 2021 order.

The parties, who had cohabited but were never married, resolved their issues in a 2020 settlement conference, with the presiding judge retaining jurisdiction over the interpretation, application, or implementation of the minutes of settlement.

Ongoing disputes arose concerning a cemetery plot, the reinstatement of the applicant on the respondent's benefits plan, and the account into which spousal support payments were being made.

The respondent brought a motion to set aside a May 2021 order, arguing that her failure to participate was due to inadvertence.

The court found that the test for setting aside the order was met, including a plausible explanation for the respondent's default.

The court clarified the cemetery plot issue, ordered further steps to involve the benefits insurer (OTIP and Manulife) for the reinstatement issue, and ruled that the respondent was not liable for support payments deposited into the applicant's garnished RBC account, except for one payment made after a specific court order.

The court deferred the costs award from the May 2021 hearing to the conclusion of the process.

Following a highly acrimonious 23-year marriage and subsequent litigation, the parties reached a settlement on the eve of trial but reserved the issue of costs for the court.

The respondent sought nearly $100,000 in full reimbursement, while the applicant primarily argued each party should bear their own costs.

The court declined to award costs to either party, finding that attempting to apply cost recovery rules after a substantive settlement is fundamentally misconceived and inappropriate, as it lacks objective benchmarks for assessing success and reasonableness.