ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Cyr v. Cyr, 2015 ONSC 350
COURT FILE NO.: FS-12-0156-00
DATE: 2015-01-16
B E T W E E N:
SUSAN FRANCES CYR
William Shanks, for the Applicant
Applicant
- and -
ROBERT SYLVIO CYR
Robert E. Stead, for the Respondent
Respondent
HEARD: January 15, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons on Motion
[1] This is a motion by the applicant for:
An Order striking out the respondent’s answer and claim for failure to comply with the Order of Pierce J. dated July 31, 2012, which required the respondent to provide proof of the values of assets and debts at date of separation.
An Order permitting the applicant to amend her application to include a claim declaring a constructive trust in favour of the applicant in the respondent’s OMERS pension
Costs on a solicitor and client basis.
[2] By endorsement dated December 11, 2014 Pierce J. adjourned this motion to January 15, 2015 peremptory on the respondent with costs of that day reserved to the disposing judge.
[3] At the commencement of the motion, counsel for the respondent advised that the respondent consented to an Order permitting the applicant to amend her application in accordance with paragraph 2 of the notice of motion. An Order shall issue permitting that amendment.
[4] The production issue which was the subject matter of the applicant's motion to strike was resolved in that the Court was advised that a report had recently been received from an appraiser which responds to the applicant’s request. Therefore, the only remaining issue is costs.
Facts
[5] At a case conference held July 31, 2012 Pierce J. ordered among other things:
The parties are to exchange tax returns and notices of assessment for 2010 and 2011 and full financial statements including proof of the values of assets and debts at date of separation. (Emphasis added)
[6] By correspondence dated July 15, 2013, counsel for the applicant wrote to counsel for the respondent providing an appraisal report with respect to the assets/contents of the applicant and requested a value of the respondent's contents.
[7] Having received no response on October 23, 2013, counsel for the applicant again wrote to counsel for the respondent requesting compliance with the Order of Pierce J. and specifically requested an appraisal of the contents in the respondent's possession.
[8] In response, on November 11, 2013, counsel for the respondent wrote to counsel for the applicant and advised that the proof of value of assets would be delivered within 2-3 weeks.
[9] Approximately eight weeks later, on June 28, 2014, having not received the appraisal as requested, counsel for the applicant wrote again to counsel for the respondent seeking the appraisal.
[10] Counsel for the respondent replied on February 18, 2014, and stated, in essence, that it was the respondent’s position that the assets had been equally divided and that the expense of appraisal was not warranted.
[11] In response, by letter dated April 4, 2014, counsel for the applicant was blunt and clear. He stated, "If further Orders are needed, costs will be sought."
[12] The respondent, in his affidavit sworn December 17, 2014, reiterated his position that the assets had been equally divided in his opinion and that the expense of the appraisal was not warranted.
[13] As indicated in paragraph 4 of these reasons, counsel advised the Court that the sought after appraisal had been received and, by some "thinking outside the box", the appraisal cost was approximately $300.
[14] The primary objective of the Family Law Rules is to enable the Court to deal with cases justly. Subrule 2 (3) instructs that dealing with the case justly includes ensuring that the procedure is fair to all parties and that expense and time should be saved.
[15] It is not for the respondent to determine whether the cost of valuation is warranted or not. The Order of Pierce J. provided that proof of value is required. Evidence of one party, unless accepted by the other, is not proof.
[16] The failure to provide the appraisal report promptly delayed the progress of these proceedings and caused further, unnecessary costs.
[17] Accordingly, I order that the respondent shall pay to the applicant her costs of this motion fixed in the amount of $750.00 plus HST.
“Original Signed By”
The Hon. Mr. Justice W.D. Newton
Released: January 16, 2015
CITATION: Cyr v. Cyr, 2015 ONSC 350
COURT FILE NO.: FS-12-0156-00
DATE: 2015-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUSAN FRANCES CYR
Applicant
- and –
ROBERT SYLVIO CYR
Respondent
REASONS ON MOTION
Newton, J
Released: January 16, 2015
/nf