COURT FILE NO.: FC-07-26289-00

DATE: 20121019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KELLY BOOTH, Applicant

AND:

JOSEPH HOWSER, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Applicant unrepresented

Peter Cozzi, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[ 1 ] In late 2011 and early 2012, I heard a trial of issues of spousal and child support as well as a constructive trust claim made by the Applicant. The Applicant claimed that she was entitled to a constructive trust claim for the purchase of the home and in respect of a line of credit registered against the home; she also claimed spousal support. The Respondent requested a dismissal of all of the Applicant’s claims and requested that his share of the net proceeds of the common residence be released to him.

[ 2 ] I issued my endorsement on July 11, 2012. I determined that the Applicant was partially successful in her constructive trust claim; although her claim in respect of the motor vehicle accident funds used to pay the mortgage off on the common residence was dismissed, she succeeded in making out a trust claim in respect of a line of credit which was later registered against the home, and which was used by the Respondent to purchase items, mostly vehicles, which were placed in his name. She succeeded in her claim for spousal support and retroactive child support; she did not succeed in her claim for ongoing child support.

[ 3 ] The Applicant has abandoned her claim for costs. The Respondent has provided costs submissions and requests costs in the amount of $10,000 plus HST. The Respondent’s claim is mostly based upon his claim of unreasonable conduct on the part of Ms. Booth. No reply costs submissions were made by Ms. Booth.

[ 4 ] According to Mr. Cozzi’s costs submissions, no offers to settle were exchanged by the parties.

[ 5 ] In considering costs under Rule 24(1) of the Family Law Rules , [1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate: (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order”.

[ 6 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I am obliged to order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing the amount of costs.

[ 7 ] In the event that a party is more successful than his or her offer, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[ 8 ] The Applicant is not claiming costs of this proceeding. Had she done so, on the basis of the success achieved at trial, I might have awarded costs to her, considering the relative positions of the parties at trial. It is apparent to me that the Applicant was more successful in the result than was the Respondent as she was partially successful in the constructive trust claim which she made, and was also successful in the result of spousal support. Moreover, the Respondent had consistently underpaid child support and the Respondent was ordered to pay retroactive child support to the Applicant. The only claim on which the Applicant was unsuccessful was ongoing child support payable in respect of the parties’ daughter, Kelsey.

[ 9 ] Conversely, and again based upon the results at trial, the Respondent would not be entitled to his costs of the proceeding. The only basis upon which I would be able to find that the Respondent was entitled to costs would be the behaviour of the Applicant in the conduct of this proceeding and the trial.

[ 10 ] The Respondent addresses several areas of misconduct by the Applicant in this matter. He notes that she did not make adequate financial disclosure by the filing of a financial statement including her present partner’s income. Her failure to do so was the basis for the Respondent’s motion at the commencement of trial for a dismissal of the Applicant’s spousal support claim in this proceeding, a motion which was ultimately dismissed. The financial statement, when filed, lacked particulars of the Applicant’s partner’s income. Moreover, the Respondent notes that it was impossible to make an offer to settle the spousal support issue as the Respondent did not have financial disclosure in this matter on which to base an offer.

[ 11 ] The Respondent also notes that the Applicant did not respond to a Request to Admit filed by the Respondent in this proceeding, thereby increasing the time for trial. Outside the Request to Admit, she also failed to admit certain facts for trial purposes, again extending the time for trial. At one point, Mr. Cozzi cross examined Ms. Booth about this, and she noted that her own Written Opening Statement contained an agreement as to those facts; in any event, the point made by the Respondent was that there were few, if any, admissions made by the Applicant which could have shortened the trial.

[ 12 ] Finally, the Respondent notes that the Applicant was late on several occasions for trial.

[ 13 ] In my own observation of the trial, I did not find that the Applicant was particularly difficult or obstreperous during the trial. It is correct that Mr. Cozzi raised the issues of the failure to file the financial statement and admissions at trial and was forced to elucidate the Applicant’s partner’s income during cross examination of the Applicant; however, as I noted in my trial endorsement, the financial statement of the Applicant did not contain any surprises; the Applicant had been receiving CPP benefits for a number of years and her income was no surprise to the Respondent who testified that it was his position for a number of years that the Applicant could get a job and that her CPP income was a sham. Moreover, as I found the claim of the Applicant for spousal support to be compensatory in nature, her partner’s income loses some relevance to the claim, especially as the Applicant and her new partner had not resided together for three years, the minimum cohabitation giving rise to a legal obligation of the Applicant’s partner in favour of the Applicant. Finally, although the Respondent may not have been in the position of preparing an offer to settle on spousal support because of the failure to file a financial statement, the Respondent did not provide evidence that he had made any sort of offer to settle on any other issue, such as the claim by the Applicant for a constructive trust interest in the net proceeds and retroactive child support.

[ 14 ] Mr. Cozzi also stated that the Applicant failed to respond to a Request to Admit served upon her, which also lengthened the trial. That Request was noted to have been prepared in the trial management endorsement. I note, however, that the Respondent did not file as an exhibit a Request to Admit as proof of the facts contained therein; nor was one filed on the continuing record. Had he submitted one, and had Ms. Booth failed to respond, her failure to respond would have constituted in itself admissions by her which would have shortened the trial. Considering the fact that no Request to Admit was filed, I cannot find that the Applicant unreasonably failed to respond as noted in the Respondent’s costs submissions.

[ 15 ] In fact, the Respondent’s conduct leading up to trial was not perfect either. As noted above, he underpaid child support for a number of years based upon the income he was actually making. I was critical of the fact that he surreptitiously took the vehicle used by the Applicant and the child when they were at a movie leaving them without transportation. I noted in my reasons that the Respondent structured the affairs of the parties to his own advantage, placing his share of the motor vehicle accident proceeds in his own name, and taking assets into his own name as purchased from a joint line of credit or credit card. He was largely responsible for the matter being brought to trial as he was less than generous with the Applicant or the child throughout the relationship.

[ 16 ] This combined with the relative success at trial by the Applicant leads me to the conclusion that there should be no order as to costs for the trial of this matter. No order as to costs.

McDERMOT J.

Date: October 19, 2012

[1] O. Reg 144/99