ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-2071
DATE: 20130211

BETWEEN:

SAVINA ELIZABETH MACDONALD

Applicant

– and –

JEFFERY JOHN ROBINSON

Respondent

Julie J. Gravelle, for the Applicant
J. Alison Campbell and Karla Pollicelli, for the Respondent

HEARD: By Written Submissions

ENDORSEMENT REGARDING COSTS

J. Mackinnon J

1Both parties are seeking full recovery costs for the seven day trial of this action. The success of the case was clearly divided. The applicant was unsuccessful on her request to relocate with the child to Nova Scotia. She did succeed in obtaining sole custody, in defeating the respondent’s claim for a finding of undue hardship and in achieving income imputation and child support. Conversely, the respondent succeeded in retaining the child’s residence in Ontario. He succeeded in obtaining a graduated access regime with the child with only a short period of supervision imposed. He did not succeed in his claim for joint legal custody, for a finding of undue hardship with respect to quantum of child support, or that there were no arrears of child support owing by him.

2In support of her claim for costs, the applicant downplays the significance of the relocation issue and stresses the fact that the respondent was found not to have complied with disclosure requests, to have failed to pay child support when he could and should have and to have been less than forthright in his evidence on financial issues.

3In my view, the applicant’s lack of success on the mobility issue and her timing in raising that issue about one week before trial are central to her claim for costs. This was a last minute request with very serious consequences. The claim was not supported by the type of evidence that ought to have been available in order for it to have had a reasonable likelihood of success. The only offer she made was entirely predicated on her success on this issue. It seems to me that her lack of success on this central issue is inconsistent with an award of costs in her favour.

4In my Reasons for Judgment, I found that the respondent’s failure to pay child support after August 15, 2012 was egregious having regard to his level of income in that year. I also found that he had failed to make requested financial disclosure, failed to prove the value of 1610 Main Street and the income he derived, if any, from Scrumptious. I found that some of his evidence with respect to financial matters ranged from vague to deceptive. I found that he had not put his child’s financial needs first.

5In addition, the respondent did not make any Offer to Settle on any issue in the case that was admissible on the issue of costs. The offer he made as part of his settlement conference brief is specifically rendered inadmissible by Family Law Rule 17(23) which provides as follows:

17(23) No brief or evidence prepared for a settlement conference and no statement made at a settlement conference shall be disclosed to any other judge, except in,

(a) an agreement reached at a settlement conference; or

(b) an order. O. Reg. 114/99, r. 17 (23).

6These aspects of his litigation conduct disincline the court from making any award of costs in his favour.

7For these reasons, there will be no order of costs to either party.

J. Mackinnon J

Released: February 11, 2013

COURT FILE NO.: FC-11-2071
DATE: 20130211

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

SAVINA ELIZABETH MACDONALD

Applicant

– and –

JEFFERY JOHN ROBINSON

Respondent

endorsement regarding costs

J. Mackinnon J

Released: February 11, 2013