CITATION: Emmerson v. Emmerson, 2015 ONSC 2949

COURT FILE NO.: FC-11-1007-00

DATE: 20150506

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TAMMY EMMERSON, Applicant

AND:

TROY EMMERSON, Respondent

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL: Self-Represented, for the Applicant

John Craig, for the Respondent

Scott Fairley, for 1793803 Ontario Ltd., 1862065 Ontario Inc., Gregory Merkley and Michael Kidman

HEARD: By Written Submissions Only

COSTS ENDORSEMENT

I. Introduction

[1] The Applicant issued an application, to set aside a Separation Agreement, for spousal, child support and net equalization payment.

[2] The Respondent disputes that the Separation Agreement should be set aside.

[3] In the course of the proceedings, the Applicant has previously moved for production and disclosure. The Respondent believes that he has produced and disclosed as ordered.

[4] In the subject motion before me, the Applicant made further requests for production and disclosure from the Respondent and his former partners and their corporations.

II. Gregory Morkley and Michael Kidman, 1793803 Ontario Ltd., and 1862065 Ontario Inc.,

[5] With respect to the motion for disclosure as against Gregory Morkley and Michael Kidman, 1793803 Ontario Ltd., and 1862065 Ontario Inc., the Applicant was successful, in that it was only after the commencement of the motion and argument did Gregory Morkley and Michael Kidman consent to limited disclosure/production. She was not successful in adding them as necessary Third parties to the proceedings. Nor was she successful in obtaining a declaration that Gregory Morkley and Michael Kidman participated in a fraudulent conveyance.

[6] However, there was no evidence that Gregory Morkley, Michael Kidman and the corporations’ counsel contacted the Applicant to offer even limited disclosure in advance of the motion. As fulsome disclosure is at the core of expediting resolutions in family law litigation, it behooved these individuals, as experienced businessmen, to engage in discussions about production with the Applicant well in advance of the motion. They did not do so.

[7] Pursuant to Rule 24, as the success was mixed, there will be no costs payable by either the Applicant nor Gregory Morkley and Michael Kidman, 1793803 Ontario Ltd., and 1862065 Ontario Inc.

III. Tammy Emmerson and Troy Emmerson

[8] As a self-represented applicant, Ms. Emerson issued an omnibus motion prematurely requesting relief which could only be addressed at trial. The matter of the setting aside of the separation agreement is a significant triable issue. The relief she sought in paragraphs 1, 2, 3, 4, 5, 19 and 20 was dismissed; as was the Applicant’s claim for interim legal disbursements and the cost of a valuation, previously addressed by Justice Mulligan.

[9] The balance of the Applicant’s motion against the Respondent was with respect to disclosure and production. Following submissions, the Respondent agreed to execute further directions with respect to the additional disclosure required by the Applicant to value the Respondent’s Personal Book of Business and an analysis of the his income.

[10] The Respondent’s Counsel relies on rule 24 (1) of the Family Law Rules (FLR), citing that the respondent was “nearly completely” successful on all issues. In the calculation of the quantum of the Costs award, he relies on rule 24 (11) (b) to argue that the matters raised by the Applicant were complex and required significant preparation by virtue of the extensive materials filed by the Applicant in her omnibus motion. In my estimation, the issues were not complex by virtue of the volume of the material produced by the Applicant. Accordingly, on the basis of the principle of proportionality, alone, in relation to the complexity of the case, I cannot award the respondent the costs he requests.

[11] On the other hand, although the Applicant concedes that the Respondent was the successful party in the Motion and thus presumptively entitled to an award of Costs, the Applicant argues that no party exchanged Offers To Settle, such that she was compelled to bring the motion to elicit the Respondent’s consent to further disclosure as required by her forensic Accountant. In addition, the Respondent had not been previously forthcoming with disclosure without a motion to compel him to do so. Accordingly, she relies on Rule 24 FLR that a successful party may be deprived of costs or ordered to pay the unsuccessful party’s costs in the event of unreasonable behaviour.

[12] In addition, she relies on the decision in Strassburger v. Strassburger, 2012 ONSC 6402 where at paragraph 6, Justice Reilly indicates, “In fixing cost the courts cannot ignore the impact of the cost award against a custodial parent that would seriously affect the interests of the child.”

[13] I reiterate the core principle of family law litigation in Ontario. Production and disclosure must be available to all parties as quickly and fulsomely as possible. Despite the serial nature of the Applicant’s requests for disclosure, my impression is that the Respondent was neither timely nor fulsome in his disclosure. Nevertheless, the Respondent’s hesitant disclosure behaviour does not rise to such an unreasonable level which would disentitle him, as a successful party, from an award of costs. However, such behaviour may be considered in the calculation of the quantum of the award.

[14] In establishing the quantum of costs, I have taken all the above matters into consideration, in including the fact that the Applicant is a working single parent who receives modest child support and is financial strapped; and, upon a review of the Respondent’s Bill of Costs, I fix the Costs payable by the Applicant to the Respondent in the amount of $6000, inclusive of disbursements and HST, payable in the cause.

OLAH, J.

Date: May 6, 2015