SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1084/13
DATE: August 31, 2015

RE: CHERYL ANN JORDAN, applicant

AND:

JAMES RUPERT STEWART, respondent

BEFORE: VOGELSANG J.

COUNSEL:
Cheryl Ann Jordan in person
Terry W. Hainsworth for James Rupert Stewart

HEARD: written submissions filed

ENDORSEMENT on costs

[1] This endorsement concerns the costs of a three-day hearing which concluded after the delivery of oral reasons, which included a request for written costs submissions. The reserved costs of two earlier interlocutory motions were also involved.

[2] The background of this litigation is quite remarkable. The parties – who never married – lived together for a number of years after meeting in 1983; however, during numerous prior ventures in litigation, they could not agree about the length of their cohabitation. A judge previously referred to a “range of cohabitation [from] nine to thirteen years.” See Jordan v. Stewart, 2013 CarswellOnt 2305, 2013 ONSC 902 (Ont. Sup. Ct.) per Czutrin J.

[3] The parties have a son, Jesse Clair Stewart. He will be 26 years old when these reasons are released. His post-secondary education has been necessarily extended, in large part by a mild learning disability, but he has succeeded in his efforts. In the witness box he appeared sensible, reasonable and realistic. By contrast, his parents have not demonstrated similar traits.

[4] The parties have warred over the child support money to be paid for their boy’s education, continuing a resort to litigation which has subsisted for fifteen years. The struggle’s last manifestation – before this case – involved a nine-day trial before Czutrin J. where Mr. Stewart disputed support responsibility in a motion to terminate Jesse’s child support. In his 300 paragraph decision, supra, Czutrin J. dismissed his motion, finding that Mr. Stewart had failed to meet the evidentiary burden to show a requisite change of circumstances before there could be a variation of child support.

[5] In Jordan v. Stewart, 2013 CarswellOnt 11295, 2013 ONSC 5037 (Ont. Sup. Ct.), Czutrin J. then crafted what is really a primer on the subject of costs when awarded to a self-represented party. He described Mr. Stewart’s behaviour in the following way:

4 This case is another example of courts struggling to determine entitlement and quantum of costs. The costs issue is made more complex by the father's willingness to spend approximately $400,000 in legal and expert fees. This amount is significantly disproportionate to any amount that he advances as his best possible financial outcome. The father also knew that, if successful, he probably would not recover the costs in any significant way from the mother as she has limited financial resources and appeared in court without counsel. She had counsel until sometime after the hearing was originally adjourned in June 2012 to September. She also occasionally sought counsel for legal advice, help preparing material, conduct of the trial, and to appear on costs submissions.

[6] Later in the reasons, Czutrin J. said:

96 While I cannot conclude that the father in this case deceived the court in any manner, his willingness to spend money on legal and expert fees so out of proportion to any economic benefit defies logic. The reasonable conclusion is that the father was prepared to cause financial harm to the mother and his son even at incredible expense to himself. He certainly never expected to recover his costs.

[7] Czutrin J. expressly described the probability that Jesse’s continuation at the community college would entail further expenses. That was the main issue before me as Ms. Jordan moved almost immediately after the decision to vary child support and obtain Mr. Stewart’s contribution to the last year of college expenses.

[8] In this litigation, Mr. Stewart’s reluctance to resolve what really was a simple issue was matched by Ms. Jordan’s determination to advance continuing demands for financial disclosure, which led to extensive motions and abundant productions, the great majority of which were not introduced or mentioned at the trial. There was no attempt at all to keep the disclosure demands proportional to the issue to be decided, although overreaching of this kind has already been clearly disapproved in Pilkington v. Barrack, 2014 CarswellOnt 18887, 55 R.F.L. (7th) 221 (Ont. Sup. Ct.) and Boyd v. Fields, 2006 CarswellOnt 8675 (Ont. Sup. Ct.). In the latter case, Perell J. recognized that, while full and frank disclosure is a fundamental tenet of the Family Law Rules, O. Reg. 114/99 and a party may have an understandable aspiration for the utmost disclosure, important elements also include proportionality, common sense, fairness and some degree of common sense when a decision is made regarding details of financial disclosure sought by a party.

[9] As Czutrin J. pointed out in his reasons, Mr. Stewart is an independently wealthy man who benefits from family investments and trusts by way of dividends determined by accountants and the other beneficiaries. He pointed to Mr. Stewart advancing $630,000 to a woman with whom he cohabited and then forgiving the loan shortly thereafter when they married. At para. 65 Czutrin J. said:

… I find this explanation consistent with the father not having financial concerns and demonstrative of his continuing ability to meet the needs he chooses to meet without any income from his work as an artist.

[10] A flurry of offers to settle were exchanged; but, in my view, neither party was ever seriously motivated to resolve the issue. If Mr. Stewart intended to cause Ms. Jordan financial harm in the previous litigation – which cost the parties over half a million dollars in legal fees – Ms. Jordan was now ready, willing and able to put him through every possible legal hoop she could. The amount of banker’s boxes, binders and other documents she amassed for trial were almost unbelievable. She abandoned her employment for months and months, having launched herself on what appears to have been a trajectory of obsession.

[11] I had real doubts about the objectivity and reliability of Ms. Jordan’s evidence in the witness box. She was, at times, evasive and even coy. Her cross-examination of Mr. Stewart was feckless and unproductive, not directed to any issue and a singular waste of time. My firm impression was that it was intended only to paint Mr. Stewart as a bad person and expose him as a man who is much less a proper parent than herself, Jesse’s champion.

[12] My final decision concerning child support resulted in Mr. Stewart having to pay only $20,000. Ms. Jordan argues that that figure is $263 greater than Mr. Stewart’s net final offer of $19,737. I am not persuaded that she is correct in her submission that she is thereby entitled to costs.

[13] Ms. Jordan was unsuccessful in seeking recovery of some $35,600 which she alleged were arrears arising under a February, 2004 order of Mesbur J. As well, she did not succeed in obtaining table amount support under s. 3(2)(a) of the Child Support Guidelines, O. Reg. 391/97 [as amended]. She failed in her argument that no account should be taken of Jesse’s receipt of a substantial bequest in considering his circumstances.

[14] Considering all of the facts in this unfortunate matter, neither party should be rewarded with any costs.

[15] There is one other matter with which I must deal. At pp. 10-12 of her costs submissions, Ms. Jordan alleges that an error was made in the calculation of Jesse’s educational grant income and asks that it be “corrected.” There was evidence before me about Jesse’s receipt of funds at the trial. Argument was directed to the point and I made a decision about that issue in my oral reasons. It is not proper now to introduce further evidence and to try to reargue the issue in costs submissions. The route to any possible relief is to appeal.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: August 31, 2015