Superior Court of Justice - Ontario
CITATION: Shouldice v. Shouldice, 2015 ONSC 2340
COURT FILE NO.: FC-13-2819
DATE: 20150410
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Wade L. Smith, Counsel, for the Applicant
Tania Pompilio, Counsel, for the Respondent
HEARD: by written submissions
COSTS ENDORSEMENT
[1] Both parties seek costs of a motion and cross motion I heard on March 9, 2015. The motions raised issues of disclosure, distribution of proceeds held in trust, but primarily related to the request by each party that the residence occupied by the other should be sold prior to trial. I made an order on March 9 addressing the disclosure and proceeds. I reserved on the remaining issues to provide the parties an opportunity to negotiate one or more agreements of purchase and sale between them. No agreement was reached. I released my reasons dismissing both motions for sale on March 29.
[2] The applicant bases her claim for costs on the necessity to bring the motion and obtain disclosure due to misrepresentations the respondent had made to the court in a previous affidavit. In an affidavit sworn on March 3, 2015 the respondent admitted this and provided his explanation for having misstated certain facts. The applicant submits that his conduct should attract censure from the court independent of the outcome of the motions.
[3] In his previous affidavit the respondent denied having purchased a home on Klondike Road. He deposed as follows at para 24:
The Klondike Road property is being purchased by Jo-Ann White (the mother of my new partner, Patricia White). I have attended the Klondike property to view it with Jo-Ann and have acted as a liaison between Jo-Ann and the real estate agent. I believe that Lisa followed me to the Klondike property and jumped to the conclusion that I am purchasing the property (Lisa has a pattern of following me and spying on me as further described below). To settle this matter, Jo-Ann has given me permission to provide Lisa and the Court with the Agreement of Purchase and Sale on the Klondike property which lists her as the sole buyer (attached as Exhibit “L”). She requested that her full signature be redacted in the document so as not to be publicly accessible in the Court file.
[4] Now he admits he had made an offer to purchase Klondike Road in July, that his partner’s mother did purchase it three months later, and he guaranteed two mortgages to assist her to make the purchase. The explanation he provides is that he made the initial offer, conditional on the sale of another property which did not sell in time, out of concern the applicant would succeed in obtaining an order to sell Gallagher Road, and he would need a place to reside with their children. He explains his decision to guarantee the mortgages as perhaps not “the best decision to have made” but did so for various personal reasons related to his new extended family.
[5] Some of the productions ordered on March 9 appear to relate to the ability of the respondent to establish that in fact he made no money contribution to the purchase and has no beneficial interest in the property.
[6] On the other hand, during the time I allowed the parties to try to negotiate a sale of one or both properties, the respondent did offer to buy Gallagher Road from the applicant at the same price and with a slightly earlier closing date than the private offer she had received and wanted to accept. Inexplicably she declined to accept the respondent’s offer to purchase. Combined with the other terms in the respondent’s offer to settle the motion one would have thought the applicant would have achieved her objectives. The respondent submits that the applicant’s conduct has been unreasonable, and has been motivated by the desire to prevent the respondent from retaining Gallagher Road not by any real necessity to sell it. This would appear to be the case. This is in fact the third motion she has brought seeking an order for the sale of Gallagher Road.
[7] Although the respondent did not make this submission, in my view the applicant’s refusal to accept the respondent’s offer to purchase and at the same time pursuing her motion for sale could well amount to bad faith and/or abuse of process.
[8] I also note that neither party should have been optimistic as to the outcome of their motion having regard to the incomplete state of the net family property statements. In the event, neither was successful.
[9] The court’s strong disapproval of the respondent’s conduct in delivering an affidavit that was to his knowledge incomplete and misleading in a material way calls for an adverse award of costs against him. His “correcting” affidavit is a mitigating factor. The shortcomings of the applicant’s own litigation conduct are a factor in reduction of the amount of costs. Neither absolves the respondent from all consequence. The obligation to “tell the whole truth” is an equal, binding and important part of the oath or affirmation administered countless times daily to litigants in court and in their lawyers’ offices. It should be trite to say it must be honoured.
[10] The applicant sought costs of $3,000. Had it not been for the respondent’s previous misleading affidavit she would not receive any costs. In the circumstances, her costs are fixed at $1,000 payable forthwith. The respondent may not take any further step in the case until he has paid this amount in full.
J. Mackinnon J.
Date: April 10, 2015
CITATION: Shouldice v. Shouldice, 2015 ONSC 2340
COURT FILE NO.: FC-13-2819
DATE: 20150410
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Wade L. Smith, Counsel, for the Applicant
Tania Pompilio, Counsel, for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: April 10, 2015