Court File and Parties

Citation: Innocente v. Innocente, 2015 ONSC 5393 Court File No.: D 19,088-10 Date: 2015-08-27 Superior Court of Justice - Ontario

Re: Janice Innocente, Applicant And: Paul Innocente, Respondent

Before: The Honourable Madam Justice Louise L. Gauthier

Counsel: Rejean Parise, for the Applicant Christopher McInnis, for the Respondent

Heard: August 27, 2015

Ruling on Costs

[1] On December 9, 2014, I released Reasons, dismissing each of the motions brought by the parties. The motions involved child support and s.7 expenses for the two children of the marriage.

[2] I am now called upon to deal with the issue of costs.

Position of the Applicant (Respondent on the motion to vary a final order)

[3] The applicant seeks her costs on a full recovery basis. She invites me to characterize her Notice of Motion of June 23, 2014 as an Offer to Settle. Had the respondent agreed to the relief she was seeking in that Notice of Motion, the proceedings before me would have been avoided.

[4] The applicant submits that, in the context of her motion being brought in response to the respondent’s motion of May 22, 2014, she is the successful party, given that the respondent’s motion was dismissed. She suggests further that she was the successful party on the dominant issue, being that of whether or not the court has jurisdiction to vary the temporary Order of Poupore J. made on November 13, 2012. In accordance with Rule 24 of the Family Law Rules, then, she should be awarded her costs.

[5] She suggests that the costs should be on a full recovery basis as the matter involved child support; the relief that the applicant was seeking was not for her personal benefit, but rather, for the benefit of the children.

[6] The applicant seeks costs in the amount of $9,250 inclusive of disbursements and H.S.T.

Position of the Respondent (Moving party on the motion to change final order)

[7] The respondent suggests that there should be no Order for costs, as each of the parties’ motion was dismissed. Both parties came before the court seeking relief which was denied them. Neither party can be said to have been successful. Both parties failed on the merits of their respective claims for relief.

[8] The respondent submits that the Notice of Motion dated June 23, 2014 is not an “Offer to Settle”.

[9] The respondent further responds to the applicant’s “dominant argument” submission by stating that, in fact, he was successful in convincing the court that there was jurisdiction to vary the temporary Order of November 13, 2012, although the court chose not to exercise that discretion in favour of the respondent in the circumstances.

[10] The respondent points out that the applicant ultimately conceded the issue of the characterization of the C.P.P. benefits being received by the children. There was no merit to her position in this regard, from the outset.

[11] Both parties made efforts to resolve the matter. The respondent was the one who initiated the four-way meeting that occurred in January, 2014 (prior to the bringing of the motions which were the subject-matter of my Reasons of December 9, 2014), to attempt to resolve the issues between the parties. The agreement in principle, reached at that meeting, did not result in a final resolution as the applicant changed her mind.

[12] The respondent made a further proposal for settlement in July, 2013, which went unanswered. (Again, this pre-dates the two motions that were before me).

Decision

[13] Both parties had brought a motion for a temporary Order, within the Motion to Change Final Order. Both motions essentially sought to vary the temporary Order made by Poupore J. on November 13, 2012. Although the applicant’s Notice of Motion dated June 23, 2014 does not specifically frame the relief sought as a variation of the November 13, 2012 Order, the essence of the relief sought is just that: changing the child support provided for in that Order, from $1,347 per month for both children, to $1,267 for the child Samantha, and $238 for the child Jamie for the summer months, and for a proportionate sharing of the s.7 expenses.

[14] Whether or not the applicant’s June 23, Notice of Motion sought to vary the temporary Order of November 13, 2012, or whether it sought to vary a Final Order on a temporary basis, the motion was unsuccessful.

[15] Although I concluded that, contrary to the applicant’s position that the court had no jurisdiction to vary the temporary Order of November 14, 2012, the court did have the jurisdiction to do so, but only in exceptional circumstances. I reached the same conclusion regarding the power of the court to vary a Final Order on a temporary basis. That power will be exercised only in exceptional circumstances.

[16] Those exceptional circumstances did not exist, either for the applicant nor for the respondent. Thus the dismissal of both motions.

[17] It cannot be said that there was a successful party in this proceeding. Rather, both parties failed to make out their claim on the merits. The presumption in Rule 24(1) of the Rules of Family Law is not applicable.

[18] I turn now to the applicant’s suggestion that she should have her costs, on a full recovery basis because she was seeking to provide for proper child support for the children. Had the applicant been successful on the motion, that submission would be much more compelling than it is in the context of the applicant’s claim for relief having been denied.

[19] Having considered all of the above, I conclude that the only fair and appropriate order to make is that neither party is awarded his/her costs.

The Honourable Madam Justice Louise L. Gauthier

Date: August 27, 2015