SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 47422-13
DATE: 2014-06-26

RE: DEBORAH TEN PAS, Applicant

AND:

ROBIN TEN PAS, Respondent

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
T. Miller, for the Applicant

D. Olsen, for the Respondent

COSTS ENDORSEMENT

[1] The parties have now delivered their written submissions on costs as requested in my endorsement of April 28, 2014.

Position of the Applicant

[2] The applicant submits that she was the successful party on the aspect of the motions which was argued and ruled upon in my endorsement, namely whether the sum of approximately $32,000 should be ordered to be released from the proceeds of sale of the matrimonial home, currently being held in trust, in order to retire the respondent's outstanding indebtedness to Canada Revenue Agency. She submits that the presumption in rule 24 (1) of the Family Law Rules that successful party is entitled to the costs of the motion applies. She seeks costs on a substantial indemnity basis in the sum of $8,339.88, based on a fee component of $6867.50, or alternatively, on a partial indemnity basis in the sum of $5003.93 representing 60% of her costs claim on a substantial indemnity basis.

[3] The applicant submits that she acted reasonably in relation to the respondent's motion, by agreeing at the outset to the release of $110,000 from trust to both parties. She submits further that the unequal financial situation of the parties can be taken into account in setting the amount of costs.

Position of the Respondent

[4] The respondent submits that it was necessary for him to bring a motion for the release of funds from trust to apply towards his CRA indebtedness due to the applicant's refusal to consent to such release pursuant to his request. The agreement of the applicant to the distribution of $110,000 to each party was only secured after he brought his motion.

[5] The respondent argues that it was necessary for him to continue with the motion seeking the release of funds from the trust fund in light of the order of Justice Sloan dated December 19, 2013 which provided that the RRSP's held by the respondent not be depleted pending determination of the remaining issues in the proceeding, without either the consent of the applicant or a court order. On the basis of this, he argues that he had no choice but to pursue his motion for release of the necessary funds to retire his tax debt from the proceeds of sale of the matrimonial home being held in trust. The respondent argues that, in the end, he obtained a distribution of $110,000 of the net proceeds of sale of the matrimonial home and the ability to use his RRSP's to pay the balance of his debt, and therefore he was the successful party on the motion. He therefore seeks and order for partial indemnity costs in the sum of $1,157.42, being 60% of his full costs, which includes a fee component of $1697.50.

[6] Moreover, in reference to the applicant’s claim for costs, the respondent argues that it is incumbent on a party to separate in their Bill of Costs the work done for the single issue argued, which the applicant has failed to do, and that much of the applicant's responding affidavit of March 18, 2014 dealt with support issues which were not argued.

Analysis

[7] I am unable to accede to the position of the respondent that he was forced by the terms of the order of Justice Sloan to proceed with his motion for the release of monies from the trust fund representing the remainder of the net proceeds of sale of the matrimonial home. Paragraph 3 of Justice Sloan's order simply provided that his RRSP's not be depleted unless he obtains the applicant's written consent or a court order. Instead of pursuing a motion to vary Justice Sloan's order to permit him to utilize a portion of his RRSPs's to retire his indebtedness to CRA, the respondent chose to seek an order permitting him to encroach upon the trust fund. In argument, he advanced the position that it was more appropriate to order that the necessary funds be released from the trust fund than that he be required to have recourse to his RRSP's. In his affidavit of December 17, 2013, the respondent deposed that "taking these monies out of my $71,000 in non-locked in RRSP now would simply increase the money I owe the Canada Revenue Agency for this year or next year by including in my income the taxes payable on those funds.” This position was maintained by the respondent through argument of the motion.

[8] On the other hand, the applicant advanced the position that recourse should not be permitted to the funds in trust, partly on the basis that the respondent had access to sufficient funds in his non-locked in RRSP to retire his indebtedness to CRA. Justice Sloan's order that the RRSP funds not be depleted was not drawn to the attention of the court, nor did counsel for the applicant inform the court that she had refused to consent to the respondent utilizing his RRSP funds, while maintaining the position that he had funds within his RRSP to cover the CRA debt.

Disposition

[9] In these circumstances, in my view, there should be no order respecting costs in reference to the issue dealt with in my endorsement of April 28, 2014. Each party should bear their own costs in respect of that aspect of the matter.

D.A. Broad, J.

Date: June 26, 2014