Ontario

Superior Court of Justice

Court File No.: C-1046/12

Date: 2013-02-01

Between:

Robin Ten Pas
Applicant

– and –

Deborah May Ten Pas
Respondent

Barry T. Paquette, for the Applicant

Tracey L. Miller, for the Respondent

The Honourable Mr. Justice P.B. Hambly

Ruling on Costs

[1] The Applicant, who is the husband, sought an order dispensing with the consent of the Respondent, who is wife, to the acceptance of an offer to purchase the matrimonial home and an adjoining property, which was a hobby farm. The application was returnable on December 12th. The offer was open for acceptance to December 14th and if accepted was scheduled to close on that day.

[2] The affidavit evidence of the husband was that the marriage had collapsed, the matrimonial home and the adjoining property needed to be sold and that the offer was for a fair price. There is nothing in the wife's material that disputed any of this. She deposed that she wanted an opportunity to purchase the property but she presented no material that proposed a practical plan for her to do so. She claims an unequal division of net family property and support. She wanted the matrimonial home to be security for these claims. However, the husband sought an order that the net proceeds be held in trust pending resolution of the wife's claims. This was the order that was made. The wife presented no defence to the application.

[3] There is a long history of conflict between these parties. The court can understand how the sale of the matrimonial home so quickly would be upsetting to the wife. The husband claims partial indemnity costs, including disbursements and HST in the amount of $5,550.54. The court must consider the factors of reasonableness and access to justice as directed by the Court of Appeal in the judgment of Justice Armstrong in Boucher v. Public Accountants 2004 14579 (ON CA), [2004] O.J. No. 2634 at para. 37.

[4] Considering the context in which the application was brought, and the result, it is my opinion that the husband is entitled to partial indemnity costs, but on a reduced scale. There will be an order that the Respondent pay to the Applicant costs fixed in the amount of $1,500 after judgment following a trial or settlement.

Justice P.B. Hambly

Released: February 1, 2013