Court File and Parties

COURT FILE NO.: FC-09-1240-01

DATE: 20130920

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Michelle Glionna, Applicant AND Garry Giotis, Respondent

BEFORE: The Honourable Mr. Justice Kaufman

COUNSEL: Russell I. Alexander, for the Applicant Michael Reilly, for the Respondent

HEARD: October 17, 2012

ruling on costs

[1] This ruling follows the granting of a final order on October 17, 2012 based on Minutes of Settlement signed by the parties at the conclusion of an exit pre-trial. The matter before the court was a Motion to Change the final order granted by Justice Hughes on March 3, 2010.

Background

[2] The parties were married on August 26, 2000 and divorced on November 17, 2010 after approximately nine years of cohabitation. There are two children of the marriage, a son aged ten and a daughter aged six.

[3] The relevant terms of the final order, based on Minutes of Settlement, were as follows:

a. The applicant had sole custody of the children subject to access by the respondent as stipulated including alternate weekends, three hours on each of Tuesday and Thursday for dinner with a view towards extending the time to one overnight stay during the summer months and provision for special occasions and holidays.

b. Child support was premised upon an income of $80,340.00 (the average income for the preceding four years) until June 1, 2010 and beginning July 1, 2010 the child support was to be adjusted based on the respondent’s 2009 income, once determined.

c. Spousal support was payable in the sum of $1,216.00 per month on the income as determined for child support. The parties acknowledged that the Spousal Support Advisory Guidelines (“SSAG’s”) suggest that spousal support should be limited to thirteen years.

d. Spousal support shall be reviewed after eighteen months from December 1, 2009.

e. Retroactive child and spousal support was fixed at $5,977.74 as of February 1, 2010.

f. Either party may seek a change in future child and spousal support if there is a material change in the condition, means, needs or other circumstance that would alter support whether, foreseen, foreseeable, unforeseen or unforeseeable. The material change to include, but not be limited to, the loss of employment.

[4] The respondent, self-represented, commenced this Motion to Change on May 25, 2011.

[5] On November 21, 2011 Justice Rowsell, on consent, granted an order changing the order of Justice Hughes by expanding on access to enable the parties to share the celebration of Greek Orthodox Easter, Christian Easter weekend, Thanksgiving weekend and Christmas vacation.

[6] The Settlement Conference was held before Justice Timms on December 20, 2011 regarding changes to spousal support and Section 7 expenses.

[7] The Trial Management Conference was held on February 15, 2012 and the endorsement sheet states that the issues for trial were a variation of a final order of Justice Hughes dated March 3, 2010, made on consent, a claim to terminate spousal support and costs.

[8] At Trial Scheduling court on August 2, 2012 the exit pretrial was scheduled, the matter was placed on the Trial list for November 19, 2012 with an estimate of 1/2 to 1 day and the court noted that a motion regarding disclosure remained and the Applicant should produce bank statements, unredacted, and that the respondent's counsel, recently retained, was not to disclose the statements to his client without agreement or court order.

[9] At approximately 7:15 p.m. on October 17, 2012 I granted a final order in accordance with Minutes of Settlement that were filed with the court and ordered the matter removed from the trial list. At approximately 7:40 p.m. I was required to return to court and after brief submissions I endorsed the record that there would be a further order that there were no arrears or overpayment owing to either party. I also requested cost submissions restricted to two (2) double-spaced typewritten pages plus Offers to Settle and Bills of Costs.

Respondent’s Submissions (Moving Party)

[10] The respondent claims success on every issue in his claim and argues that he proceeded in a reasonable fashion throughout as reflected by the correspondence and the offers and seeks to rely upon the presumption reflected in Rule 24(1) of the Family Law Rules (“Rules”). In light of the applicant's alleged unreasonable behaviour, the respondent seeks full recovery of his costs in the sum of $14,995.78 inclusive of HST and disbursements.

[11] In support of his belief that the applicant acted unreasonably, the respondent submits the following:

a. Upon being served with the Motion to Change, the applicant maintained that there had been no material change of circumstances justifying a change, a position which she maintained throughout the litigation, notwithstanding the review provision as set out in paragraph 31 of the existing court order;

b. The applicant originally rejected mediation until recommended by the Dispute Resolution Officer but her counsel restricted mediation to the access issue only which resulted in the agreement subsequently endorsed by Justice Rowsell;

c. The applicant was both unreasonable and inflexible in her Offers to Settle and insisted, throughout, on recovering her costs as a precondition to any resolution short of trial thereby effectively invalidating the merits of the respondent's position that would have resulted in the reduction of spousal support and child support and ignored the fact that he had already succeeded changing access;

d. Following a recommendation by the Justice presiding at the Settlement Conference that the applicant was obligated to work, she amended her Offer wherein she proposed a reduction to support that was unreasonable in that it provided for an unnecessarily limited duration of time for an acceptance of her proposal over the Christmas holidays, thereby interfering in the respondent's ability to seek legal advice and that it did not impute the applicant with any income nor was there a provision for a future review.

e. The suggested level of spousal support offered by the applicant exceeded the mid-point of the SSAG’s;

f. The applicant sought reimbursement for a Section 7 expense to which the respondent had not consented which was contrary to paragraph 22 of the existing order;

g. The applicant's proposed changes to support were to be effective January 1, 2012 and all arrears were to be repaid which did not factor in that the Offer was being made seven months after the review date;

h. The insistence that the respondent pay costs notwithstanding that he was the successful party rendered the offer unfair and unacceptable and was intended to discourage settlement;

i. The respondent's Offer to Settle dated January 2, 2012 was reasonable and reflected the purpose of the mandatory review contained in the original order which was to provide the applicant with an opportunity to obtain full-time employment in the 18 months prior to the review. The respondent also notes that by her own admission, the applicant made absolutely no effort to find full-time employment;

j. Whereas the respondent concedes that perhaps his proposal that spousal support be terminated on December 31, 2012 was aggressive, it was simply on the opposite end of the applicant making no provision whatsoever for imputed income or reviews in her offers;

k. The applicant's third Offer to Settle dated February 15, 2012 was virtually identical to her second Offer other than for slight adjustments but costs were increased to $10,000.00. An option to have the court fix costs was included but only the amount would be at issue and the respondent would still be liable for payment;

l. The respondent made a further Offer to Settle dated October 10, 2012 premised on an income of $47,825.00;

m. The respondent adduces a summary of correspondence exchanged between counsel following the appointment of the respondent’s solicitor in February, 2012 which reflects the respondent's efforts to obtain disclosure, adjourn the trial to the fall sittings and schedule an exit pretrial, all of which were summarily rejected by the applicant;

n. The respondent was successful in obtaining an order from Justice Rowsell at Trial Scheduling court requiring the applicant to produce unredacted copies of her bank statements; the applicant's disclosure was finally completed seven months after the initial request. Furthermore, the respondent sought minor amendments to pleadings but applicant's counsel refused to consent unless the respondent agreed to pay $5,000.00 in costs in which case he would seek instructions regarding the amendments to the pleadings;

o. The applicant showed further unreasonable behaviour in refusing to consent to reasonable requests to adjourn the trial even though there would be no prejudice to her as she was receiving her ongoing support from the Family Responsibility Office.

[12] The respondent concedes that neither party exceeded his or her respective Offers. He maintains that the applicant's Offers all contained costs consequences that were unreasonable and discouraged settlement. He further maintains that but for his concession that no income be imputed to the applicant until October 2013 (four and one-half years post-separation) both of his Offers would have been more favourable than the settlement and that he should not be deprived of costs for making this significant concession.

[13] In summary, the respondent focuses on the applicant's unreasonable behaviour in refusing to acknowledge that the respondent was entitled to a review of spousal support without having to establish a material change in circumstances in accordance with the existing order. He submits that there can be no question that this position, clearly wrong in law, weighed heavily on negotiations and was a significant disincentive to resolution.

Applicant’s Submissions (Responding Party)

[14] It is the applicant's position that she was successful in this litigation and entitled to receive full recovery of her costs in the total amount of $34,945.85 on the following basis:

a. The respondent brought a Motion to Change a relatively recent spousal support order and sought a termination of spousal support 18 months thereafter, this following a relationship with the applicant of approximately 9 years. The respondent was unsuccessful in his attempt to terminate his spousal support obligation;

b. The applicant maintains that she was prepared to follow recommendations of the Case Management Justices and rendered several Offers to Settle before and during each conference in which she offered to lower the respondent’s spousal support obligations to accord with his alleged lower income and the SSAG’s but the respondent was insistent on terminating his support obligations to her;

c. Following the retention of counsel, the respondent made extensive and excessive disclosure requests. The applicant responded and some of her records were edited to ensure privacy as the respondent allegedly was known to stalk and harass her. Respondent's counsel insisted upon clean copies which were provided after receiving counsel’s undertaking not to share the information with the respondent. These disclosure requests resulted in delay and further expense to the applicant and ultimately nothing turned on the documents;

d. The applicant alleges that the respondent was unreasonable in his conduct with respect to the issue of outstanding and undisputed Section 7 expenses for the children notwithstanding the recommendations of the court and that to achieve a resolution, the applicant agreed to accept full responsibility of these expenses;

e. The applicant asserts that the respondent misrepresented to the court that his support was current and that the Minutes of Settlement be implemented on a go forward basis with an endorsement of no arrears. The applicant maintains that this representation was inaccurate and introduces a statement from the Family Responsibility Office indicating arrears of $19,460.84 on the date of the exit pretrial. Rather than move to set aside the settlement (on the basis of mistake or misrepresentation) the applicant requests that the court takes into consideration that these arrears were eliminated in error in consideration of who should pay costs and the appropriate amount of same;

f. The respondent's unreasonable conduct and failure to compromise in a meaningful fashion entitles the applicant to full recovery of her costs which are considerably higher than the costs claimed by the respondent who was unrepresented for nine months of litigation;

g. The respondent's unreasonable conduct continues as he is failed to pay support in accordance with my order of October 17, 2012 and has permitted new arrears to accumulate;

h. The applicant alleges the respondent is in further breach of my order which limited written closing submissions to two double spaced pages. The applicant received three single spaced pages from the respondent. Correspondence was sent by applicant's counsel inviting the respondent to resubmit his submissions in accordance with my order but the respondent failed to do so or to even respond to the correspondence. As the respondent failed to comply with the court order regarding this issue, the applicant submits that the court ought to disregard same in their entirety;

i. The applicant suggests that failure to comply with my order regarding written submissions is but one more example of how the respondent's conduct has marred this proceeding and has been contrary to the primary objective of the Rules which is to save time and expense.

[15] In summary, the applicant maintains that the respondent sought to terminate his spousal support obligations, that spousal support continues and that the Applicant was successful in securing ongoing spousal support. She states that she made offers consistent with the recommendations of the Case Management Justices and was prepared to compromise very early on in the proceeding and continued to compromise and make significant concessions at the exit pretrial. Her costs are directly attributable to the respondent’s unreasonable positions and his complete failure to compromise in any significant way. She requests that any costs ordered should be characterized as support and enforced through the Family Responsibility Office.

Analysis

[16] An analysis of every family law case should commence with a refresher course on Rule 2 of the Rules which states as follows:

(2) The primary objective of these rules is to enable the court to deal with cases justly.

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[17] For reasons hereinafter set out, it is evident that both parties, in their conduct, have breached the primary objective of the Rules. Ironically, they blame one another for being both unreasonable and inflexible. The level of animosity is evident even in the costs submissions of respective counsel. As so capably stated by my sister Justice Margaret Scott in Reid v. Catalano 2008 CarswellOnt.5316 the patronizing exchanges and complete lack of civility between counsel pervasive in their submissions and correspondence were not of any assistance to the court and consequently did not serve the interest of either party.

[18] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[19] Subrule 24(1) of the Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). As noted by Scott, J. in Reid v Catalano, supra, (paragraph 21) in measuring success, in order to award costs pursuant to subrule 24(1), the court must perform an analysis of the proportionality of the event or step taken in relation to the importance and true complexity of the issue, while not rewarding either side for tactics that have arisen due to the “high conflict”.

[20] In addition, to determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ).

[21] The parties are able to agree, surprisingly, that none of their Offers to Settle satisfy the requirements of Rule 18(14) in that neither of them obtained an order that is as favourable or more favourable than any offer. The court has a discretion to take into account any written Offer to Settle, the date it was made and its terms, even if subrule 18(14) does not apply, when exercising its discretion over costs. (subrule 18(16)). Further, in deciding whether a party has acted reasonably or unreasonably in a case, the court shall examine the reasonableness of any offer the party made. (clause 24 (5)(b) of the Rules).

[22] The respondent's first Offer to Settle was dated January 2, 2012. It provided for a termination of spousal support effective December 31, 2012. It also purported to place a cap on his annual contribution towards his contribution to Section 7 expenses while requiring his consent in advance of any such expense being incurred. It purported to change child support in accordance with his estimated income. Finally, it provided for the prior orders of Justices Hughes and Rowsell to continue other than as amended.

[23] The respondent’s second Offer to Settle dated October 10, 2012 provided for a reduction of both child and spousal support based on the estimated reduction in the respondent's income. It did not provide for a termination of spousal support or imputation of income to the applicant.

[24] The respondent is critical of the applicant's Offers to Settle for a number of reasons. He argues that there is no future provision for a review of support as contained in paragraph 31 of the original order; in this regard, I note that the applicant's Offers all provide for a continuation of the order of Justice Hughes (and Justice Rowsell) so an argument can be made that a future review has not been precluded although, clearly, there was no proposal with respect to the timing of such a review. The respondent also argues that the applicant's original position that there had been no material change in circumstances justifying the Motion to Change ignored the respondent's ability to have the support reviewed in accordance with the prior order of Justice Hughes. The respondent also complains that the applicant failed to consider an adjustment to both spousal and child support as of the commencement date of the Motion to Change to factor in the decline in the respondent's income and continued to rely upon entitlement to enforce the arrears that had accumulated between that date and the date of the exit pretrial. Finally, the respondent complains that the applicant's insistence on her entitlement to costs, which increased in each of her Offers, ignored the respondent's entitlement to have the support reviewed and made the acceptance of any of her Offers cost-prohibitive. In this regard, I note that contrary to the position advanced by the respondent, paragraph 5 of the Offer to Settle dated February 15, 2012 provided that the respondent would pay the applicant costs of $10,000.00 "or such costs as may be fixed by the court" which may well have resulted in the court not fixing costs.

[25] The applicant is critical of the respondent's behaviour and, as noted, maintains an entitlement to costs for a number of reasons including that the respondent sought to terminate spousal support and was unsuccessful in that regard and that the issue of Section 7 expenses should not have been litigated, ignoring that part of the respondent's complaint was that such expenses had been incurred without his prior consent as required by paragraph 22 of the original court order. With respect to the apparent lack of success in terminating spousal support, this is a valid point but tends to ignore that the respondent was successful in reducing both spousal and child support and changing the access. I note that the consent order of Justice Rowsell regarding access was silent on the issue of costs and pursuant to Rule 24(10) the issue of costs relating to that event is not before me. Subrule 24(10) sets out that costs are to be determined in a summary manner after each step in the case by the presiding judge. A “step” in the case is one of the discrete stages recognized by the rules such as a case conference, settlement conference and the like. Husein v. Chatoor 2005 ONCJ 487, [2005] O.J. No. 5715 (OCJ). The trial judge should not deal with requests for costs that were addressed or should have been addressed at these prior steps in the case. Islam v. Rahman 2007 ONCA 622.

[26] As I did not hear any evidence from the parties, under oath, I am unable to determine the reasonableness or unreasonableness of their positions regarding the section 7 expenses and whether or not consent had been requested in advance of any such expenses being incurred or whether or not such consent had been unreasonably withheld.

[27] I would be remiss in not commenting upon the additional submissions of the applicant. Firstly, with respect to the alleged misrepresentation that there were no arrears of support owing under the prior order, it is open to the applicant to proceed under Rule 25(19) to collect the arrears that were then owing. One must wonder why the applicant was unaware of the status of her support payments on the date of the exit pretrial recognizing that the trial was to commence in less than one month. If the applicant is asking the court to find that the respondent’s behaviour was unreasonable, thereby entitling her to costs, the applicant is asking the court to rely upon evidence that was not adduced at trial or under oath. It may well be that the respondent was seeking a revision to the original order retroactive to the date of the commencement of the Motion to Change whereas the statement of arrears relied upon by the applicant’s alleged arrears owing at the date of the exit pretrial. In any event, the applicant is attempting to rely upon fresh evidence which I will not accept again, recognizing her recourse under Rule 25(19). Similarly, experienced counsel should appreciate that alleging noncompliance with my court order of October 17, 2012 with respect to the payment of ongoing support is not a relevant factor for my consideration on the issue of costs. As above, I recognize that the applicant has recourse in enforcing the support obligation reflected in my order.

[28] Finally, the applicant asks me to disregard the respondent's cost submission in its entirety because the submissions exceeded my court order restricting submissions to two pages. In theory, the applicant is correct in that the respondent is in breach of my order and did not seek an indulgence in that regard. The breach of my order is a factor that could be taken into consideration in the determination of costs but the suggestion that I ignore the respondent's costs submissions offends the primary objective of the Rules which is to deal with cases justly.

[29] On the basis of the above, I find all of the Offers to Settle of very little assistance in the determination of costs.

[30] The failure to make an Offer to Settle much earlier by either party is unreasonable behaviour. Subrule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the Rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to Settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See: Laing v. Mahmoud, 2011 ONSC 6737. The failure to serve an Offer to Settle will be an adverse factor when assessing costs. Similarly, the failure to serve reasonable offers to settle will be an adverse factor when assessing costs.

[31] Under Rule 24 (6) I find that there has been divided success or, more so, divided lack of success. The respondent was entitled to initiate the process of review which was not acknowledged by the applicant; it should have been. The respondent sought to terminate spousal support; based on the facts of this case, he should not have done so. Regarding the issue of access, presumably it was the children who were successful because, somehow, the parties discovered a process in which they could be reasonable with one another and this resulted in the consent order granted by Justice Rowsell, presumably, to the benefit of the children in allowing them to celebrate special holidays with both parents and their extended families. I also find that the applicant's proposals regarding costs, as reflected in her Offers to Settle, were heavy-handed and designed to discourage settlement discussions. I am unable to make any comment on the reasonableness (or lack thereof) of the respondent insisting upon disclosure since the matter did not proceed to trial and I have no way of knowing if anything would have turned on this information if the trial had proceeded.

[32] I am required to consider the factors set out in subrule 24 (11) of the Rules which reads as follows:

24 (11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) 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

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[33] Subrule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11) (b) above). It reads as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[34] Although the respondent proceeded at the earliest possible time contemplated by the order of Justice Hughes, he was entitled to do so. I give him the benefit of the doubt that his income had declined such that a recalculation of both spousal and child support and the proportionate contribution towards section 7 expenses was of importance to him. However, any benefit to which he is entitled is considerably minimized by his position that the applicant was no longer entitled to spousal support. Although the respondent was self-represented when he commenced the Motion to Change, he understood that paragraph 30 of the final order provided an acknowledgment that both parties understood that under the SSAG’s spousal support should be limited to 13 years and yet he was trying to eliminate it after 18 months. Admittedly, the ongoing receipt of spousal support was also of importance to the applicant. Aside from the importance to both parties, I find that the issues before the court were only made complex or difficult by the aggressive positions taken by the parties and not by the facts of the case.

[35] I have already noted that the behaviour of both parties throughout this matter left much to be desired. Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 ONCJ 141. Similarly, as the parties were no strangers to litigation and have both been previously represented in 2010, they have to assume responsibility for the behaviour of their respective counsel who, presumably, acted upon instructions of the clients.

[36] I find that the time expended by the parties did not properly reflect the issues before the court. The parties and their counsel conversed and corresponded with one another but it would appear that neither party truly attempted to hear what the other was saying. There was an absence of civility that does not reflect well upon the parties or their respective counsel. The request to adjourn the trial could easily have been accommodated since there was little if any prejudice to the applicant. Disclosure, which serves as the foundation of enabling parties to consider their settlement positions, should have been exchanged at an earlier stage of the proceeding and should not have required a court order. Amendments to pleadings, if non-prejudicial, should be the subject matter of a consent order. Costs submissions are to reflect issues properly before the court and are to be submitted in accordance with a court order unless that order is amended. Finally, I am left with the impression that the letter of June 9, 2011, written by counsel for the applicant following receipt of the Motion to Change failed to properly address the respondent's request for a review of the spousal support order to which he was entitled. In hindsight, it would have been preferable if the original court order of March 3, 2010 had stipulated the purpose of the review rather than leaving it to the imagination of counsel to interpret at a later date.

[37] I have considered both Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), [2004] O.J.No. 2634 (Ont. C.A.) and Delellis v Delellis 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345. Both these cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9: Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[38] I have carefully examined the Bills of Costs presented by the parties. As noted, I have been unable to determine that one party has been more successful than the other and the costs submissions did nothing to persuade me to the contrary. The applicant's costs are higher than that of the respondent as she was represented by Mr. Alexander from the beginning whereas Mr. Reilly arrived on the scene at a later stage of the proceedings. In summary, the Applicant was unreasonable in initially denying the respondent's entitlement to review of support and the respondent was unreasonable in attempting to terminate the spousal support obligation from that point on both parties chose the path of aggression and posturing. The respondent's costs submissions were excessive and in contravention of my order but were of sufficient persuasion to overcome the respondent's lack of success in terminating spousal support, as originally pleaded. The applicant’s cost submissions relied on information improperly placed before the court. The applicant may still have recourse to remedy the alleged misrepresentations of the respondent and she clearly has recourse to enforce compliance with the support provisions of my Order.

[39] The resolution of the Motion to Change achieved the following:

a) a consent order from Justice Rowsell regarding access;

b) a change in child support recognizing that the final order required a yearly adjustment based on fluctuation of the payor’s income;

c) a change in spousal support pursuant to the review provided for in the original order and not a termination, as requested.

[40] Although, it has been determined that the Offers to Settle are of little if any assistance, the court finds that the unnecessary aggressive position taken for the applicant from the onset including but not limited to ignoring the respondent’s entitlement to a review tips the scale in favour of the respondent, however slightly. Factoring in all of the above, the respondent will be awarded costs in the sum of $2,500.00.

[41] The court has received a 14B from the respondent requesting an opportunity to file reply costs submissions, with the reply submissions appended as an exhibit to the supporting affidavit. For reasons already reflected in this decision, there is no need for reply. The 14B is therefore dismissed.

Kaufman J.

Released: September 20, 2013