CITATION: MESA v. QUIROS, 2016 ONSC 1049
COURT FILE NO.: 48760-14
DATE: 2016-02-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ILSA de los ANGELES MESA ROJAS, Applicant AND: JAHIRO AUGUSTO QUIROS PLAZAS, Respondent
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: Charles Morrison, for the Applicant Respondent – self-represented
HEARD: February 5, 2016
ENDORSEMENT
Parties and Proceeding
[1] The applicant wife (age 57) and the respondent husband (age 62) were married on April 5, 1991 in Bagota Columbia. It is noted that the parties’ surnames are “Mesa” and “Quiros” respectively.
[2] At the time of the parties’ marriage the applicant was a widow with two children Ilse Forero (born July 25, 1980) and David Forero (born November 14, 1982). Her first husband Orlando Forero died on March 29, 1988.
[3] The applicant and the respondent have one child together Maria de Los Angeles Quiros Mesa (“Maria”) born November 23, 1993 (age 22). Maria is currently enrolled in the third year of a four-year program in health sciences and physiology at The University of Western Ontario.
[4] The parties separated in March, 2013.
[5] This proceeding was commenced by Application issued March 4, 2014 claiming a divorce, spousal support, child support, equalization of net family properties, exclusive possession of the matrimonial home and contents, special and extraordinary expenses shared in proportion to the respective incomes of the parties, and life insurance.
[6] The respondent filed an Answer on April 29, 2014. In it the respondent claimed a divorce, spousal support for himself, child support for Maria, an unequal division of the net family properties in favour of himself, an order declaring him to be the sole legal and beneficial owner of the matrimonial home property in Cambridge, Ontario, or alternatively, the owner of an undivided one-half interest in that property, and sale of the matrimonial home.
Background
[7] The respondent was a senior executive for Kellogg’s Company throughout the marriage and was the family’s sole breadwinner. He was also the only father figure for Ilse Forero and David Forero and supported them throughout the marriage, along with the applicant and Maria. The family moved frequently as the respondent gained promotions, moving from their native Columbia to Guatemala and thereafter to Brazil, Mexico, Michigan USA and Chicago USA.
[8] The marriage was “traditional” and the applicant was the principal homemaker and caregiver to the three children with the assistance of a maid/nanny. She was teaching in Columbia when the parties met in 1990, but did not work outside of the home after the marriage and has no marketable work experience in Canada or elsewhere. The applicant’s only income comprises a small widow’s pension which she received throughout her marriage to the respondent and which she continues to receive. This pension pays $287.69 per month.
[9] The respondent left Kellogg’s in 2008 after 22 years of service and negotiated a severance package.
[10] Shortly after leaving Kellogg’s the respondent began to receive two company pensions, a “qualified” pension and an “unqualified” pension. Those pensions are payable in US funds. The respondent also receives a Mexican pension totaling $5768 Canadian per year. Based upon current exchange rates, the respondent’s admitted pension income is currently $143,134 per year. The applicant’s gross income from all sources in 2014 was $5644.
[11] The applicant claims that, in addition to his two pensions from Kellogg’s and his Mexican pension, the respondent is entitled to Colombian pensions as well as US Social Security. The respondent denies that he is entitled to a Columbian pension and that he is not receiving US Social Security payments.
[12] Since separation the applicant has resided at the parties’ matrimonial home in Cambridge, Ontario and has paid all expenses associated with that residence including mortgage, taxes, insurance, utilities, maintenance and repairs. The registered title to the Cambridge property is held by the applicant at 90%, Ilse Forero at 5% and the respondent at 5%. The circumstances by which title was taken in this fashion is disputed. The applicant says that the respondent advised her to instruct the lawyer acting on the purchase to have the title taken this way. The respondent denies this and asserts that the applicant provided those instructions to the lawyer without his consent.
[13] The respondent owns a home in Florida on which he receives rental income and owns and resides in a condominium at London, Ontario.
[14] The respondent has paid a minimal amount of child support and no spousal support to date. The amount paid by him for child support has totalled $5900, comprised of $300 per month for the first three months following separation, $1000 on June 14, 2013, $2000 on May 29, 2013 and $2000 on July 2, 2014. The respondent has paid no support since July, 2014.
[15] On or about March 20, 2013, just prior to separation, the applicant withdrew approximately $340,000 of the joint proceeds of sale of the parties’ previous home in Mexico and used this to pay down the mortgage on the Cambridge matrimonial home. She withdrew another $200,000 from the joint account and has used these funds to support herself, Maria and to pay the matrimonial home expenses since separation. Another $48,000 of the proceeds of sale of the Mexican property remained in the joint account and were withdrawn by the respondent on or about March 27, 2013, which the applicant claims was the date of separation.
[16] The applicant states that the monies used by herself and Maria are now exhausted. Maria continues to finance the majority of her post-secondary and living expenses through OSAP. There is also approximately $22,000 in RESP funds to assist her in her further studies.
[17] Maria attends University year-round. The applicant deposes that from September 2013 to August, 2014 Maria’s living and educational expenses were $37,426, including $7115 tuition, $2500 summer studies, $10,800 rent and $4200 groceries. The applicant deposed further that Maria does have part-time work as a note-taker and that she is now sharing her apartment and accordingly, her accommodation costs are less than in previous years.
Nature of the Motions
[18] The applicant brought a motion originally returnable on July 9, 2015 seeking the following relief:
(a) interim child support;
(b) interim spousal support;
(c) a further and better financial statement with respect to the respondent’s pension income from all sources, his rental income and his income from employment or self-employment;
(d) an order requiring the respondent to obtain asset valuations of his various pensions;
(e) exclusive possession of the matrimonial home in Cambridge, together with its contents;
(f) an order requiring the respondent to secure his support obligations by life insurance naming the applicant as the sole irrevocable beneficiary; and
(g) an order requiring the respondent to obtain suitable health insurance for the benefit of the applicant and Maria.
[19] The respondent brought a cross-motion originally returnable in the week of September 20, 2015 seeking the following relief:
(a) an order granting leave to the respondent to deliver an amended Answer to claim that the applicant committed bigamy when the parties were married on the basis that her former husband Orlando Forero was still alive at that time;
(b) a declaration that respondent is the beneficial owner of the matrimonial property in Cambridge, Ontario, or in the alternative, that he is the beneficial joint owner, along with the applicant;
(c) an order granting leave to amend his Answer to add Ilse Forero as a party in order to advance his claims in respect of the Cambridge, Ontario property;
(d) an order that a Certificate of Pending Litigation be registered against the Cambridge property;
(e) an order that, if the Cambridge property is sold, the proceeds of sale be held in trust pending a final determination of the proceeding;
(f) an order that the respondent have a right of inspection of the matrimonial home at Cambridge, Ontario;
(g) an order that the respondent receive his personal belongings from the matrimonial home;
(h) an order that the applicant produce a further and better financial statement; and
(i) an order that the applicant produce a budget and supporting documentation outlining Maria’s student expenses, as well as copies of her report cards and attendance records.
Child Support
[20] The Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), provides, at subsection 15.1(2), that the court may, on application by either or both spouses, make an interim order requiring a spouse to pay support for any or all children of the marriage. Subsection 15.1(3) provides that a court making an interim order under subsection (2) shall do so in accordance with the Child Support Guidelines (the “guidelines”).
[21] Subsection 3(2) of the guidelines states that, unless otherwise provided, where a child to whom a child support order relates is of the age of majority or over, the amount of the child support order is the amount determined by applying the guidelines as if the child were under the age of majority, or, if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child, and the financial ability of each spouse to contribute to the support of the child.
[22] Paragraph 7(1)(e) of the guidelines provides the court may provide for an amount to cover all or any portion of expenses for post-secondary education. Subsection 7(2) provides that the guiding principle in determining the amount of an expense referred to in subsection 7(1) is that the expenses be shared by the spouses in proportion to their respective incomes, after deducting from the expense, the contribution, if any, from the child.
[23] In his affidavit sworn or affirmed August 18, 2015 the respondent deposed that he is currently in debt and does not make enough money to pay support to Maria. He deposed further that the Canada Revenue Agency had, on that day, froze his bank account due to an outstanding tax liability of $126,700. He stated that he would provide details regarding the financial hardship he is in, either prior to the motion date or on the date the motion is heard. He therefore asked that the applicant’s request that he pay child support be dismissed.
[24] In the alternative, the respondent deposed that the applicant “stole” money from him, including the sum of $200,000 from the proceeds of the sale of their jointly-owned Mexican property and he asks that any money he is required to pay be set-off against the money that she owes to him. He also requested that a budget and supporting documentation be provided outlining Maria’s student expenses. He further states that if funds are needed the applicant should agree to cooperate in the immediate sale of the home in Cambridge and that a portion of the proceeds could be used to support Maria’s education once she establishes her need.
[25] Although the respondent indicated that he would be providing further particulars with respect to his financial hardship, he did not file an affidavit providing such further particulars. His affidavit of December 7, 2015 does not provide further information respecting his claim to undue hardship. In particular, the respondent provided no details concerning the current steps, if any, being taken by CRA in respect of his outstanding tax liability, including whether he has entered into a payment plan or whether his bank account remains frozen. The respondent’s financial statement dated October 13, 2015 indicates the current market value of his solely-owned home in Florida to be $452,200, with a mortgage against it in the sum of $325,282.07. The respondent’s equity in the Florida home of $126,917.93 appears to be equivalent to his outstanding tax liability to CRA. The respondent does not explain why he has not sold the Florida property to retire his tax liability.
[26] Subsection 10(1) of the guidelines provides that the court may award an amount of child support that is different from the amount otherwise determined under the guidelines if the court finds that the spouse making the request would otherwise suffer undue hardship. Paragraph 10(2)(a) includes, in the circumstances that may cause a spouse to suffer undue hardship, the fact that the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living (emphasis added). There is no indication that the tax liability of the respondent falls into this category. Moreover, subsection 10(3) of the guidelines provides that an application for undue hardship must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under the guidelines, have a higher standard of living than the household of the other spouse.
[27] I am not satisfied that the respondent has made out a case for undue hardship relieving him from, or reducing, his obligation to pay child support.
[28] With respect to the respondent’s claim that he should be relieved of his obligation to pay child support by reason of the withdrawal by the applicant of the sum of $200,000 following the sale of the parties’ home in Mexico, or that his obligation should be set-off against the amount that the applicant withdrew, it would appear, on a prima facie basis, that the applicant would have an obligation to account to the respondent for the sum of $76,000, her share of the $248,000 proceeds taken from the joint account by the parties having been $124,000. It is noted that the respondent has made only minimal payments of child support and no payments of spousal support since separation. The accounting of the parties’ respective obligations in respect of equalization and support post-separation is more appropriately left for trial.
[29] In her Financial Statement sworn June 18, 2015, the applicant indicates that Maria’s current living and post-secondary expenses total $1902.07 per month. The applicant has no means to contribute to these expenses.
[30] Utilizing the “table amount plus tuition only” approach, the respondent’s obligation for child support, based upon his admitted current annual income of $143,134, in Canadian funds based upon the current exchange rate, would be $1980 per month representing a table amount of $1212 and a tuition contribution of $768.
[31] Given the varying exchange rates, the respondent’s admitted income as of September 21, 2015 was $119,048 per annum, which would provide for a monthly child support obligation, utilizing the “table amount plus tuition only” approach, of $1793, being $1029 table amount plus $764 tuition contribution.
[32] In my view, it is more appropriate to require the respondent to pay, on a without prejudice basis, interim child support based upon two-thirds of Maria’s living and post-secondary expenses, being the sum of $1268 per month, taking into account Maria’s own obligation to contribute towards the cost of her own education, and the applicant’s inability to make any contribution.
Spousal Support
[33] Subsection 15.2(2) of the Divorce Act provides that the court may make an interim order requiring a spouse to secure or pay such lump sum or periodic sums as the court thinks reasonable for the support of the other spouse. Subsection 15.2(4) provides that, in making an interim order for spousal support, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including, the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.
[34] Under subsection 15.2(6), an interim support order should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[35] In the recent case of Joyce v. Joyce 2015 ONSC 4311 (S.C.J.) Ricchetti, J. recounted the following principles dealing with the approach to be taken to motions for interim spousal support taken from the case of Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273 (Ont. C.J.) as follows:
Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
Interim support is to be based on the parties' means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.
On interim support motions, needs and ability take on greater significance.
On interim motions, the need to achieve self-sufficiency is of less importance.
Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise.
Interim support should only be ordered where a prima facie case for entitlement has been set out.
[36] Although Justice Ricchetti generally accepted the applicability of these principles, he expressed disagreement with respect to the proposition that interim support should be ordered within the range of the Spousal Support Advisory Guidelines (SSAG) unless exceptional circumstances dictate otherwise, in light of the Court of Appeal decision in Racco v. Racco, 2014 ONCA 330 (Ont. C.A.). At para. 44 of Racco the court stated as follows:
The principles articulated in the Supreme Court of Canada in connection with the Divorce Act provide a framework within which equitable support awards are to be made. Although the SSAG offer a certain level of predictability and consistency once the basis for entitlement has been established, they are advisory only. The court cannot lose sight of the individual circumstances of a case in determining both entitlement and quantum under section 15 of the Divorce Act.
[37] The applicant asserts that the mid-point amount payable under the SSAG based upon the respondent’s admitted pension income in Canadian funds of $119,048 per annum as of September 2015 was $3076 per month, and based upon his current income in Canadian funds of $143,134 per annum it is now $3747.
[38] In my view, given the gross disparity between the parties’ respective incomes and their standards of living, post-separation, I do not find the mid-level monthly payments under the SSAG to be unreasonable or inappropriate in light of the circumstances of the parties as disclosed by their respective Financial Statements. I would award interim spousal support payable by the respondent to the applicant, on a without prejudice basis, in the sum of $3076 per month from June 1, 2015 to February 1, 2016, and in the sum of $3747 per month commencing March 1, 2016.
Additional Claims for Relief by the Applicant
(a) Further and Better Financial Statement
[39] With respect to the applicant’s claim that the respondent file a further and better Financial Statement with respect to his pension income from all sources, his rental income and his income from employment or self-employment, I am not satisfied that this is warranted. The respondent has deposed in his affidavit of August 18, 2015 that he does not receive any Colombian pension nor US Social Security pension, nor is he employed or self-employed. He also disclosed his rental income on the home in Florida as well as its expenses and deposed that he is currently losing money on the Florida property. If the applicant is unsatisfied with the responses provided by the respondent she has the right to carry out questioning of the respondent as provided in the Case Conference order of June 30, 2014.
(b) Health and Life Insurance
[40] With respect to health insurance benefits and life insurance, the respondent deposed in his affidavit of August 18, 2015 that he maintains the Blue Cross coverage provided by his former employer and it remains available for both the applicant and Maria to use. It is appropriate that the respondent be ordered to maintain the existing Blue Cross coverage in place pending disposition of this proceeding.
[41] The respondent deposed in his affidavit that the applicant and Maria are primary beneficiaries under his life insurance policy with UNUM and that he undertakes to leave them on that policy until the issues of marital status and entitlement are determined. However, Exhibit P to his affidavit, being an email from UNUM, indicates that the primary beneficiaries of the policy are Ilse Mesa 30%, Maria Quiros 30% and Paola Quiros 40%. The respondent should be ordered to maintain the UNUM policy BL0248553 naming the applicant as the irrevocable sole beneficiary in order to secure his spousal and child support obligations.
(c) Valuations of Pension
[42] It is also appropriate that the respondent be ordered to obtain actuarial valuations, at his own expense, of both United States Kellogg’s pensions as well as his Mexican pension, with the valuation report translated into English, as necessary.
(c) Exclusive Possession of Matrimonial Home
[43] The applicant has requested an order for exclusive possession of the matrimonial home. She has occupied the home since separation and the respondent has purchased his own property in London, Ontario and is also the owner of the home in Florida. In his affidavit sworn August 18, 2015 the respondent stated “the applicant can have possession of the Cambridge home and its contents until such time as the Cambridge home and contents are sold.” He is seeking a declaration that he is the beneficial owner of the Cambridge home or, in the alternative, declaration that he be made in the beneficial joint owner, along with the applicant.
[44] On the basis that the respondent does not oppose it, it is appropriate to order that the applicant have exclusive possession of the matrimonial home pending the disposition of this proceeding.
Claims for Relief of the Respondent
(a) Leave to Amend Answer to Claim Bigamy
[45] Rule 11(3) of the Family Law Rules provides that “on motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.”
[46] In the case of Greenglass v. Greenglass (2009) 2009 CanLII 39995 (ON SC), 74 R.F.L. (6th) 320 (S.C.J.) Allen, J. held at para. 12 that judges have an inherent authority to control their own proceedings and “are given the discretion to make orders that ensure fairness to the parties, that result in the judicious use of the Court’s resources and that avoid unreasonable delays and protracted proceedings.” She went on to observe that the consideration of whether any prejudice that would result from an amendment could be compensated by costs or an adjournment has to be viewed from the perspective of the overall circumstances surrounding the litigation.
[47] The Court of Appeal dismissed the appeal from Justice Allen’s decision at (2010) 2010 ONCA 675, 99 R.F.L. (6th) 271 (C.A.), holding, at para. 16, that further delay occasioned by the proposed amendment would cause hardship to the other spouse who did not have the same resources to weather prolonged financial insecurity. The Court of Appeal held at para. 18 that, while rule 11(3) and related jurisprudence clearly signal that a party should rarely be denied the opportunity to make their case, the question of whether to allow an amendment is within the discretion of the judge hearing the motion. Where a party had ample opportunity throughout the proceedings to seek their amendment but did not do so, that fact may be taken into account to deny an amendment request.
[48] Here the respondent deposed in his affidavit dated August 18, 2015 that “during the marriage and after our separation, I came across various documentation that show Orlando might still be alive.” No explanation is offered as to why the respondent did not plead the bigamy defence in his original Answer.
[49] Moreover, without deciding the issue, it is doubtful, even if what the respondent alleges is true (which is vehemently denied by the applicant), that the bigamy claim would provide an arguable defence to the applicant’s claims for child support, spousal support and equalization. Although the respondent professed to have in his possession authorities supporting the proposition that it would provide such a defence, he declined to provide them to the court, notwithstanding repeated requests by the court for him to do so during his submissions.
[50] On a brief review, I have been unable to discover any authority supporting the proposition that bigamy would provide a defence to a claim for child support, spousal support and equalization in the circumstances described in the respondent’s affidavit. “Spouse” is defined in s. 1 of the Family Law Act R.S.O. 1990, c. F.3. to include “either of two persons who have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.” The respondent’s affidavit material does not suggest, even if it can be accepted that the applicant’s former husband was still alive on the date of their marriage, that the applicant did not act in good faith in entering into the marriage with the respondent.
[51] Given the delay on the part of the respondent in bringing forward his claim of bigamy, the protracted nature of the proceeding to date, the disparity in the financial means of the parties, the complications which would arise from litigating the issue based entirely on almost 30 year old evidence from Columbia, and the tenuous and uncertain legal basis for the proposed defence, I would exercise my discretion to deny the respondent’s request for leave to amend to plead bigamy. To allow the amendment would disadvantage the applicant in a way for which costs or an adjournment could not compensate.
(b) Leave to Amend Answer to Claim against Ilse Forero re Title Issues Respecting the Matrimonial Home
[52] As indicated above, the respondent has claimed a declaration that he is the sole legal and beneficial owner of the matrimonial home property in Cambridge, or alternatively an order declaring him to be the legal and beneficial owner of an undivided one half interest in that property, and an order under the Partition Act directing the sale of the property. Given that the applicant’s daughter Ilse Forero is a registered owner of the Cambridge property to the extent of 5%, her interest, if any, in the property is in issue in this proceeding and without her being joined as a party to the proceeding, it would not be possible to make any binding order for the sale of the property without her consent. It is therefore appropriate that leave be granted to the respondent to amend his answer to advance an appropriate claim against Ilse Forero as it relates to the title to the Cambridge property. Given that the title to the property is already in issue in the proceeding, such an amendment would not disadvantage the applicant in a way for which costs could not compensate. The respondent is therefore entitled to amend his pleading in this respect pursuant to rule 11(3) of the Family Law Rules.
(c) Claims for Declarations respecting Title to the Matrimonial Home
[53] In my view, the issues respecting title to the Cambridge home are properly issues for trial. It is not appropriate to dispose of these issues on a pre-trial motion. Moreover, it is not necessary for the protection of the respondent’s interest in the property for a Certificate of Pending Litigation to be issued and registered. As the property was used as the parties’ matrimonial home, no dealing with the applicant’s interest to the property may be made without the consent of the respondent. Moreover he remains on title with a 5% interest.
(d) Claims for retrieval of Personal Items and Inspection of Matrimonial Home
[54] The respondent’s claims for retrieval of his personal items and for inspection of the matrimonial home were not pursued by him in submissions.
(e) Claim for Further and Better Affidavit of Documents
[55] The respondent’s claim for a further and better Financial Statement from the applicant was not pursued by him in submissions. Both parties are required to comply with the Family Law Rules respecting the updating of their Financial Statements
(f) Claim for Budget re Post-Secondary Expenses
[56] I find that it is appropriate that the applicant provide an ongoing budget with respect to Maria’s post-secondary expenses, including living expenses, tuition and related expenses so long as the respondent continues to pay child support. However, I see no reason to order that her achievement reports and attendance records be provided.
Disposition
[57] For the foregoing reasons it is ordered as follows:
(a) the respondent shall pay to the applicant child support for the child of the marriage Maria de los Angeles Quiros Mesa on an interim, without prejudice, basis in the sum of $1268 per month commencing on the first day of June, 2015;
(b) the respondent shall pay to the applicant spousal support on an interim, without prejudice, basis in the sum of $3076 per month from June 1, 2015 to February 1, 2016 inclusive, and in the sum of $3747 per month commencing March 1, 2016;
(c) a Support Deduction Order shall issue;
(d) the respondent shall maintain his existing Blue Cross health coverage in place for the benefit of the applicant and the said child pending final disposition of this proceeding;
(e) the respondent shall maintain his UNUM policy BL0248553 naming the applicant as the irrevocable sole beneficiary in order to secure his spousal and child support obligations pending final disposition of this proceeding;
(f) respondent obtain actuarial valuations, at his own expense, of both of his United States Kellogg’s pensions as well as his Mexican pension, with the valuation report translated into English, as necessary;
(g) the applicant shall have exclusive possession of the matrimonial home at 15 Thatcher Street, Cambridge, Ontario, pending the disposition of this proceeding;
(h) the respondent is given leave to amend his Answer to join Ilse Forero as a party to this proceeding in respect of his claims for declaratory relief in respect of the registered title to the said matrimonial home and for sale of the said property under the Partition Act;
(i) applicant to provide to the respondent an ongoing budget with respect to the said child’s post-secondary expenses, including living expenses, tuition and related expenses so long as the respondent continues to pay child support. The budget for the current academic year shall be provided within 30 days hereof and it shall be updated by September 30 of each year thereafter;
(j) the balance of the claims for relief in the applicant’s motion and in the respondent’s motion are dismissed; and
(k) approval by the respondent of the draft formal order giving effect to the foregoing is dispensed with.
[58] If the parties cannot agree on costs, the applicant may make written submissions as to costs within 21 days of the release of this endorsement. The respondent shall have 14 days after receipt of the applicant’s submissions to respond and the applicant has 7 days thereafter to deliver any reply submissions. The initial submissions of the applicant and the submissions of the respondent shall not exceed 3 double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines. The applicant’s reply submissions, if any, shall not exceed two such pages. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad J.
Date: February 11, 2016