ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No . F 1130/98

AND

Evan James Varcoe v. Charles Spettigue and Donna Spettigue

Court File No . F 643/10

2012 ONSC 925

DATE: 2012/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Donna Reid Spettigue and Charles Spettigue- Applicants

v.

David G. Varcoe- Respondent

AND

BETWEEN:

Evan James Varcoe- Applicant

v.

Charles Spettigue and Donna Spettigue- Respondents

BEFORE: The Honourable Madam Justice D. Chappel

COUNSEL:
K. Millikin, Counsel for Charles Spettigue and Donna Spettigue

G. Johnson, Counsel for David G. Varcoe

N. Matthews, Counsel for Evan Varcoe

COSTS JUDGMENT

I. INTRODUCTION

1On July 7, July 8 and August 26, 2011, I heard three motions in connection with this matter. I released my Judgment in relation to these motions on November 7, 2011. In my Judgment, I invited counsel to submit written submissions on the issue of costs. These are my Reasons for Judgment on the issue of costs in connection with the three motions.

2The motions that are the subject of this Judgment were brought in two separate proceedings, which are being heard together further to an order of Lafrenière, J. dated January 28, 2011. As I indicated in my November 7, 2011 Judgment, the matter of Donna Spettigue and Charles Spettigue v. David Varcoe is a Motion to Change Final Order (the “Motion to Change”) which David Varcoe has brought relating to the children of his marriage to Donna Spettigue, namely Aislinn Brittany Varcoe, born July 31, 1991 (“Aislinn”) and Evan James Varcoe, born April 15, 1993 (“Evan”). This Motion to Change involves the issues of access, child support and contribution to section 7 expenses under the federal Child Support Guidelines [1] (the “ Guidelines”). The second court proceeding, Evan Varcoe v. Donna Spettigue and Charles Spettigue (“the Evan Application”), is an Application brought by Evan in which Evan has claimed child support for himself from his mother, Donna Spettigue (“Mrs. Spettigue”), and his stepfather, Charles Spettigue (“Mr. Spettigue”).

3The three motions which were the subject of my Judgment dated November 7, 2011 were as follows:

1. A motion brought by David Varcoe (“Mr. Varcoe”) in the Motion to Change, originally returnable on March 25, 2011, requesting an order striking the pleadings of Mr. Spettigue and Mrs. Spettigue based on a failure to produce previously ordered financial disclosure, or in the alternative, an order requiring disclosure of relevant financial documents within a specified time-frame. Mr. Varcoe also requested costs in connection with a number of previous court appearances as a result of the alleged failure to provide disclosure.

2. A motion brought by Evan in the Evan Application, requesting an order striking the pleadings of Mr. Spettigue and Mrs. Spettigue in that case based on a failure to produce previously ordered financial disclosure, or in the alternative, an order requiring disclosure of relevant financial documents within a specified time-frame. Evan also requests costs in connection with a number of previous court appearances as a result of the alleged failure to provide disclosure. This motion was also originally returnable on March 25, 2011.

3. A motion brought by Mr. Spettigue, in both proceedings, requesting an order for disclosure of various financial records from Mr. Varcoe. This motion was originally returnable on May 27, 2011.

4In the two motions to strike pleadings (“the motions to strike”) which Mr. Varcoe and Evan brought, I dismissed the request for an order striking the pleadings of Mr. Spettigue and Mrs. Spettigue. However, I made a very detailed and extensive order regarding the disclosure of financial information which is required to decide these cases. In the motion for disclosure of financial information which Mr. Spettigue brought in both proceedings, Mr. Spettigue was successful in obtaining an order requiring Mr. Varcoe to provide additional financial disclosure of a number of items.

II. POSITIONS OF THE PARTIES

A. Motions of David Varcoe and Evan Varcoe to Strike Pleadings and for Disclosure

5Mr. Varcoe is requesting costs on a full indemnity basis in the amount of $15,136.83 as against Mr. Spettigue and Mrs. Spettigue in connection with his motion to strike, as well as punitive damages in the amount of $5,000.00, for a total of $25,136.83. He argued that the disrespect which Mr. Spettigue and Mrs. Spettigue demonstrated to this court by failing to comply with the disclosure order of Mazza, J. dated September 9, 2010 and avoiding their general duty to provide full and frank disclosure must be sanctioned by the court by means of a significant costs order. He also relied on an Offer to Settle in which he proposed an order requiring Mr. Spettigue and Mrs. Spettigue to comply with the disclosure order of Mazza, J. by July 31, 2011, and requiring them to pay costs in the amount of $500.00 in connection with the settlement conferences which had been adjourned.

6Evan is requesting costs on a substantial indemnity basis, in the amount of $10,987.78, as against Mr. Spettigue and Mrs. Spettigue in connection with his motion to strike. He argued that such an order is warranted in this case as a result of the blatantly disrespectful conduct of Mr. Spettigue and Mrs. Spettigue in ignoring the disclosure order of Mazza J. dated September 9, 2010 and avoiding their general duty to provide full and frank disclosure of their financial situations. Evan also relied on the fact that he had served three Offers to Settle in relation to the motion.

7In response, Mr. Spettigue argued that an important factor to consider in determining the issue of costs in connection with the two motions to strike is the fact that the motions brought by Mr. Varcoe and Evan were essentially identical. He submitted that Mr. Varcoe and Evan should have coordinated their efforts in regard to these motions, and that the duplication of effort that resulted from both of them bringing the same motions contravenes the primary objective set out in Rule 2(2) of the Family Law Rules , which is to enable the court to deal with cases justly. He submitted that the court should not consider the Offer to Settle submitted on behalf of both Mr. Varcoe and Evan on August 23, 2011, as the Offer was made midway through the motion, it included a term that $5,000.00 in costs be paid to both Mr. Varcoe and Evan. Further, Mr. Spettigue argued that the costs sought by Mr. Varcoe and Evan in connection with the motions to strike are excessive having regard for the nature of the motions, and that the costs claimed include costs relating to numerous matters unrelated to the motions to strike.

B. Motion of Charles Spettigue for Disclosure from David Varcoe

8Charles Spettigue requests costs on a partial indemnity basis in the amount of $6,307.63, inclusive of disbursements and HST, in relation to his motion for disclosure of records from David Varcoe, to be apportioned as between David Varcoe and Evan as the court deems appropriate. In support of this request, he argued that he was successful in obtaining the disclosure order which he sought, and that the disclosure of this information is critical to enable the court to properly determine the issues in this case. He submitted that the motion was relatively complex, given that it had to be brought in two separate proceedings, and that Mr. Varcoe is not a party to the Evan Application. Finally, he argued that Mr. Varcoe and Evan took unreasonable positions on the motion, since full and frank financial disclosure is necessary for the determination of both his liability for child support and the issue of quantum in the event that liability is established.

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