ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-75603
DATE: 2014-07-04

B E T W E E N:

TARA RENEE ALLEN

Fareen Jamal, for the Applicant

Applicant

• and -

JASON SPALDING

Self-represented

Respondent

Price J.

Costs Endorsement

NATURE OF PROCEEDING

[1] After Tara Allen and Jason Spalding separated, Ms. Allen, a working mother, expended her limited financial resources obtaining an order for interim child support for their three children, 2 to 4 years old, and seeking financial disclosure from Mr. Spalding. Snowie J. made an interim order for child support on February 22, 2013, and ordered Mr. Spalding to make financial disclosure.

[2] Mr. Spalding, who was employed until January 31, 2013, as a Human Relations Manager, stopped paying child support in July 2013, when his severance payments from his former employment ran out. He stated that he was unable to continue paying child support because he had not yet secured suitable alternative employment.

[3] Mr. Spalding moved to vary Snowie J.’s interim child support order and for further financial disclosure from Ms. Allen. Ms. Allen responded with a cross-motion in which she sought further financial disclosure from Mr. Spalding. The two motions were heard October 15, 2013, and an order was made requiring Mr. Spalding to pay arrears of child support, continue paying child support in an amount based on his 2012 income, and make the further financial disclosure that Ms. Allen had requested. The balance of the motions were adjourned to be heard as a long motion.

[4] The parties were unable to settle the issue of costs and made written submissions on this issue. The court has reviewed their submissions and these are the reasons for the costs order that follows.

BACKGROUND FACTS

[5] Mr. Spalding and Ms. Allen were married on June 29, 2008. They differ as to the date of their separation. Ms. Allen states that they separated on January 4, 2012; Mr. Spalding states that they separated on March 1 or April 1, 2012. There is no dispute that Mr. Spalding left the matrimonial home on February 27, 2012.

[6] Ms. Allen began a proceeding by application issued on July 27, 2012, in which she claimed custody of the parties’ three children, Jasmine Spalding, born December 4, 2009, and Justin and Lia Spalding, born July 27, 2011, child support, and other relief. On January 31, 2013, Mr. Spalding was terminated from his position as a Human Resources Manager with Headwaters Health Care Centre on terms that provided for severance payments for six months. He received an eight week lump sum payment and $48,093.25, as salary for six months based on an annual salary of $97,905.60. In total, he received approximately eight months’ termination pay.

[7] At a Case Conference on February 22, 2013, Snowie J. made an interim order directing that the children were to have their principal residence with Ms. Allen, requiring Mr. Spalding to pay 40% of their special expenses of $2,767.00, pursuant to s. 7 of the Federal Child Support Guidelines, .and directing the parties to exchange financial disclosure within 21 days.

[8] At a Settlement Conference on May 21, 2013, Lemon J., on consent, ordered the parties to make specified disclosure, which required Mr. Spalding to produce medical records, pension valuations, RRSP records, HBC records, and details of all efforts to seek and maintain new employment.

[9] Mr. Spalding made the required contributions to the children’s s. 7 expenses until July 2013, when his severance from the Headwaters Health Centre ran out. Although he received Employment Insurance following the two week period of statutory ineligibility, he made no payments in August and paid a total of only $2,000 from September 2013 onward.

[10] Mr. Spalding moved for served Ms. Allen with a motion to vary Snowie J.’s order for s. 7 expenses, and for disclosure from Ms. Allen, to be heard October 15, 2013, but was late filing his motion material, and when he attended at the court office on October 10, 2013, the counter staff refused to accept it. He states that he received Ms. Allen’s cross-motion for disclosure and child support after returning home that day from the court. However, Ms. Allen produced an affidavit of service of Pedro Apolonia, a process server, sworn October 9, 2013, attesting to the fact that her cross-motion was served on Mr. Spalding on October 8, 2013, and the counter staff accepted her cross-motion for filing on this basis.

[11] The court allowed Mr. Spalding to file his motion at the hearing on October 15, 2013, even though he acknowledged that he had not prepared or served an up-dated financial statement, as required. Both motions were heard and an order was made on that date. I stated the following in my endorsement:

a) I am satisfied that Ms. Allen has made the disclosure requested of her to this point, to the extent she is able to do so. Mr. Spalding wants additional disclosure in the form of financial statements from Ms. Allen’s professional corporation, which was not incorporated until December 2012, less than a year ago. I am satisfied with her evidence that there are no financial statements from that corporation yet….

b) As for the disclosure Ms. Allen seeks, Mr. Spalding ahs acknowledged he has not provided an up-to-date financial statement and I am not satisfied that he has provided the balance of the disclosure set out in Schedule “A” of Ms. Allen’s factum. He will be required to provide this disclosure.

c) As for child support, Mr. Allen acknowledges that after his employment was terminated on January 31, 2013, he received vacation pay and severance. Based on the information and evidence before me, and having regard to the incomplete disclosure provided by Mr. Spalding, I am satisfied that Ms. Allen’s calculation of the amount owing to date, in the amount of $26,709.96, as set out in Schedule “B”, attached, is the most accurate that can be arrived at to this point.

d) Ms. Allen has not provided any authority for the order she requests requiring Mr. Spalding to renegotiate the joint loan incurred for his studies. I will make an order for preservation and non-dissipation of assets and order that Mr. Spalding not make further draws on the parties’ joint debt. Notwithstanding that this relief is not specifically requested, it is alternative relief to that which is sought in response to Mr. Spalding’s threats that he may declare bankruptcy or file a consumer proposal.

[12] In the result, the court ordered Mr. Spalding to produce the disclosure that Ms. Allen had requested, to pay child support in the amount of $2,049.00 per month based on his 2012 income, to pay 40% of specified additional s. 7 expenses, and arrears of $26,709.96, without prejudice to the parties’ right to seek re-adjustment of such contributions at trial, and that he not dissipate his assets or make further draws on the parties’ joint credit facilities pending trial. The court adjourned the balance of the motions, with regard to ongoing child support and disclosure and spousal support, to a long motion date to be arranged by the parties after the deadline provided for making disclosure.

ISSUES

[13] The parties have asked the court to determine who is responsible for the costs of the motions and to determine the amount of costs to be paid.

PARTIES’ POSITIONS

[14] Ms. Allen seeks her costs of the motions on a substantial indemnity scale in the amount of $7,872.25. Her total costs for the motions amounted to $9,740.71. These costs included $5,952.28 incurred after delivering an Offer to Settle dated October 7, 2013, including the full day attendance at the hearing of the motions on October 15.

[15] Mr. Spalding submits that no costs should be ordered against him and that instead, Ms. Allen should be ordered to pay his costs in the amount of $1,500.00.

ANALYSIS AND EVIDENCE

[16] A costs order balances two conflicting principles:

a) A blameless litigant who is successful in a proceeding should not be required to bear the costs of prosecuting or defending the proceeding.

b) Citizens should not be made to feel unduly hesitant to assert or defend their rights in court by the prospect that, if unsuccessful, they will be required to bear all the costs of their opponent.

[17] The Supreme Court has held that the ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently.[^1]

The Discretion to be Exercised

[18] The entitlement to costs and the amount to be paid are “within the court’s discretion.”[^2] The Courts of Justice Act provides:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid. [Emphasis added]

[19] The court must exercise its discretion with due regard to the objectives of costs awards, and to rule 24(11) of the Family Law Rules (“FLR”), which sets out the factors the court considers when determining how the objectives are best attained in the circumstances of a particular case.[^3]

... (decision continues verbatim exactly as in source) ...

Price J.

Released: July 4, 2014

[^1]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25‑26.
[^2]: Courts of Justice Act, s. 131.
[^3]: Family Law Rules, O. Reg. 114/99.