SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3769/12

DATE: 2014-07-11

RE: GILBERT EDEN ROBERTS, Applicant

AND:

CAROL ELIZABETH ROBERTS, Respondent

BEFORE: M.J. Donohue, J.

COUNSEL:
Jason W. Gottlieb, Counsel for the Applicant

Belinda Rossi, Counsel for the Respondent

HEARD: Written Submissions

Costs ENDORSEMENT

[1] The parties provided their written submissions on costs.

[2] The Respondent seeks partial recovery of her costs of $6,545.15 (exclusive of costs ordered by Justice Gray due to the Applicant’s lack of disclosure) to May 8, 2013, and a portion of her costs thereafter of $8,432.63 due to delays in productions and being advised of the position of the applicant. The total sought is $14,977.78.

[3] The Applicant husband seeks partial recovery costs of $4,303.41 to the date of an offer dated November 2, 2012, and full recovery costs of $26,319.56 thereafter. The total sought is $30,622.97.

THE OFFER

[4] The Applicant husband argues that he can invoke the cost consequences of Rule 18(14) of the Family Law Rules regarding cost consequences of an offer to settle.

[5] I do not find that he can do so for two reasons:

(a) The offer is not signed by the Applicant and by his counsel pursuant to Rule 18(4); and

(b) I do not consider the order which the Applicant obtained was as favourable or more favourable than the offer he made. The spousal support order I made was higher than that which was offered. I ordered that during the stay he would not have the benefit of the variation for five months. I also ordered that the review period was to extend a further two years to allow Ms. Roberts some stability to gain her self-sufficiency.

CONDUCT OF THE LITIGATION

[6] There was a need for the disclosure requests made by the Respondent wife which took up much of the pre-hearing time and effort. On review of all the disclosure, I determined that Mr. Roberts had contributed to his position where his finances were so constrained that he required the variation order. I found he also contributed to a delay of Ms. Roberts plans for self-sufficiency.

[7] Both parties expended approximately 100 hours of legal time over the last two years.

SUCCESS DIVIDED

[8] Although Mr. Roberts succeeded in the variation order he was not successful in his efforts to have the court impute income to Ms. Roberts.

[9] Rather, I ordered the review date for spousal support to be extended two further years to July 2018 in light of Mr. Roberts’ delay with disclosure and his contribution to his lowered financial circumstances.

ABILITY TO PAY

[10] I am satisfied that the respondent, Ms. Roberts has been severely disadvantaged financially by Mr. Robert’s employment behaviour over the last two years. I recognize that she has the funds she obtained from the matrimonial home in a liquid account which have not been invested in a new home pending her education and re-entry into the work force.

[11] I found Ms. Roberts’ plans for self-sufficiency by way of education were delayed by Mr. Roberts’ behaviour.

[12] Ms. Roberts’ support has been reduced by nearly half as a result of this variation order.

[13] In these circumstances I do consider Ms. Roberts’ ability to pay when I look at the order for costs.

ORDER

[14] Mr. Roberts had some success in the hearing. By the time of the hearing there was sufficient disclosure for the parties to assess the reasonableness of their positions.

[15] The time spent for the preparation of the factum, argument and attendance at the hearing could have been avoided.

[16] I order Ms. Roberts to pay costs to Mr. Roberts in the amount of $10,000.

M.J. Donohue, J

Date: July 11, 2014