CITATION: Folkes v. Folkes, 2016 ONSC 4347

COURT FILE NO.: FS-13-77460-00

DATE: 2016-06-30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Colin Folkes v. Susan Annmarie Bailey Folkes

BEFORE: Van Melle, J.

COUNSEL: Mukesh Bhardwaj, for the Applicant

Vipin Kumar Sharma, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

Van Melle, J.

[1] Justice Belleghem presided over a trial between the parties on November 23, 24, 25, 26 and December 14 and 15, 2015. His decision was released March 3, 2016. He knew that he would be retiring in May of 2016 so made the following endorsement regarding costs:

Costs will, in the first instance, be dealt with in writing. The Applicant shall deliver cost submissions, not to exceed five pages, exclusive of dockets and case law, within 15 days. The Respondent shall have 10 days to respond, on the same terms. The Applicant shall reply on similar terms, with no more than three pages. The cost issue may be determined by any judge of this court as an ex parte matter, unless either the Court, or either party, wishes to have the matter of costs spoken to. In the latter event, an appointment shall be taken out in the usual manner for this purpose. I am not seized of the matter of costs.

[2] At the request of Regional Senior Judge Daley I am deciding the issue of costs.

[3] The trial concerned issues arising out of the marriage and subsequent separation of the parties.

[4] Justice Belleghem had to deal with the following issues:

1. The Applicant/husband’s proprietary right to the matrimonial home and whether it was necessary for him to amend his Application to advance that claim;
2. Whether the parties separated on March 9, 2013 (the wife’s date) or October 1, 2013 (the husband’s date);
3. Each party’s claim to occupation rent;
4. Custody of Dylan, born April 29, 2004;
5. The Respondent/wife’s claim for arrears of child support, ongoing child support and section 7 expenses;
6. The wife’s claim for retrospective and ongoing spousal support;
7. Both parties’ claim for a divorce.

[5] As is often the case, both parties claim at least partial success at trial. The husband says that he was wholly successful with respect to the proprietary interest issue; that he was wholly successful with respect to occupation rent; that he was partially successful with respect to custody as he was awarded liberal access; that the arrears he owed per the Child Support Guidelines were in the range of $1000 and that the arrears of s. 7 expenses were fixed at $12000. He states that as he was in large part successful, he is presumptively entitled to costs.

[6] The respondent/wife says that she was more successful at trial. She says that she claimed and was awarded sole custody of Dylan; that she was found to be entitled to receive child support for the dependent children of the marriage from time to time retrospectively from March 9, 2012; and prospectively, that she was found to be entitled to receive the husband’s share of section 7 expenses including a contribution toward Kimberly’s expenses for post-secondary education; she got exclusive possession of the matrimonial home and contents and that her date of separation prevailed over the husband’s.

[7] As I read the judgment, Justice Belleghem found that the husband had to amend his Application and allowed him to do so, to plead a proprietary interest. This was important because title to the matrimonial home was solely in the name of the wife. Justice Belleghem found that whether the proceeds of sale should be distributed having regard to the value at separation or the time of sale was and had been a live issue throughout the proceedings and thus the wife was not prejudiced by the amendment. The husband states that the general claim for equalization would have taken this all into account. With respect, I disagree. A claim for equalization is exactly that and pursuant to the FLA one must complete a Net Family Property Statement with the values of the property they own at the valuation date. A claim for equalization does not include a claim for the increase in value of an asset when that asset is registered solely to one party. Justice Belleghem held at paragraph 19: “Accordingly, the amendment will be allowed, as requested, without costs to either party.”

[8] The husband states that he made strenuous attempts to settle the issues. He states that following the Settlement Conference in August of 2014, the substance of the action proceeding to trial had been the equalization of the matrimonial property [sic] /proprietary interest of the husband. Prior to trial, the position of the wife (according to the husband) was that the property was placed in her name alone because it was intended by both parties to be her property alone, and that, in any event, the husband made little contribution to its maintenance. The husband submits that the wife maintained both an improper and unreasonable position and that the balance of the issues were carried to trial on that basis.

[9] I disagree with this perspective. Technically, in his application, the husband did not claim a proprietary interest. The proprietary interest, as outlined above, is not caught by the FLA equalization scheme.

[10] As part of his Settlement Conference brief dated August 11, 2014, the husband tendered an Offer to Settle which he says I should take into account in assessing costs. The offer was:

1. The Applicant and Respondent shall have joint custody of the child, Dylan Folkes.
2. Permanent residence of the child shall be with the Applicant.
3. The Respondent shall have frequent and liberal access visitation with the child.
4. The Respondent shall make child support payments to the Applicant in an amount which is in accordance with her true income and the Ontario Child Support Guidelines.
5. The Respondent will provide to the Applicant the SIN card and Birth Certificate for Dylan with 30 days in order for the Applicant to open a trust account for the child
6. The matrimonial home municipally known as 125 Van Scott Drive, Brampton, Ontario shall be appraised as at the current market value and shall then be sold. The Applicant and Respondent shall equally share the proceeds from the sale. In the alternative, the Respondent may keep the home and provide the applicant with an equalization payment to settle his entitled share of the property.
7. Either party can proceed with obtaining a Divorce on an uncontested basis.

[11] The wife says that this offer was made in a Settlement Conference brief and I should thus not take it into account. I disagree. An Offer made in a Brief is capable of being accepted. If it bears resemblance to the end result it should certainly be taken into account.

[12] The husband states that there is no ambiguity in the Offer and that it is very clear. I disagree. By way of example, paragraph 6 is far from clear. He wanted to share equally in the matrimonial home if sold but was prepared to abide by the FLA equalization scheme if it was not sold. Subsequent events showed that the husband’s “entitled share of the property” was an issue. Subsequent events and the submissions on costs demonstrate that the husband does not completely understand the equalization scheme under the FLA. Further he felt that Dylan should live with him and that the wife should pay him child support for Dylan. As this offer bears little resemblance to the final result, I will not take it into consideration in assessing costs.

[13] The husband says that much time was expended at trial on the proprietary right issue. From a review of the Judgment it appears that this was indeed the case. I bear in mind however, that this issue was officially raised at the outset of trial. Surely the husband bears some responsibility for not having amended his pleadings at a much earlier date – i.e. when this issue first came to mind. Although he may have raised this issue at Conferences at an earlier date, he failed to amend his pleadings accordingly - pleadings are there for a reason. Pleadings allow parties to know what case they have to meet. A claim for proprietary relief in a Family Law Proceeding is a substantive claim and as such must be specifically pleaded along with the facts relied upon for the claim.

[14] The husband states that unreasonable behaviour on behalf of the wife can be implied from her failure to make an inadequate [sic] counter offer. Although Offers to Settle are to be encouraged, the failure in and of itself to make a counter offer in the circumstances herein does not raise the wife’s behaviour to the level of unreasonable.

[15] The wife was completely successful in her claim for sole custody, and child support and section 7 expenses. It is true that she was unsuccessful in her spousal support claim. However, I accept the wife’s submission that custody, child support and section 7 expenses were far more important to her than spousal support.

[16] The husband’s claim for costs rests primarily on his success on the “proprietary” claim. He takes the position that had the wife not been unreasonable on this issue, the matter would not have gone to trial and it was her unreasonable behaviour that caused the trial. Had he amended his pleadings prior to trial his argument would have more weight. His failure to do so undermines his claim for costs.

[17] Turning now to the Applicant’s Bill of Costs, I note that there are many items in the Bill of Costs that are not properly the subject of a costs order at trial. For example, there are charges for: Revocation of Power of Attorney; Draft Separation Agreement; attendance at Case Conference; preparation for Settlement Conference; attendance at Settlement Conference; Attendance for motion and long motion, etc. The Family Law Rules set out that costs are to be addressed at each step in a Family Law proceeding. If an endorsement or order is silent, it is assumed that no costs are ordered in connection with that particular step. Unless costs are specifically reserved to the trial judge they cannot be dealt with after the fact. I have reviewed the endorsements in the Trial Record and find that no costs were reserved to trial. In any event, a costs outline should contain far more detail than the outline provided by the husband. There should be a breakdown of the amount of time expended on each step. In that way I would have been able to ascertain the amount of time actually spent on the trial, including that portion which dealt with the amendment to the pleadings, which would of course have attracted no costs pursuant to Justice Belleghem’s ruling.

[18] On the other hand, the wife’s costs submission contains a summary of the time dockets and the amount of time spent on each step. This document is far more helpful in determining the quantum of costs if costs are going to be awarded.

[19] Having reviewed the Judgment of Justice Belleghem and considered the party’s respective costs submissions I find that success being divided, there will be no order as to costs.

Van Melle, J.

Released: June 30, 2016

CITATION: Folkes v. Folkes, 2016 ONSC 4347

COURT FILE NO.: FS-13-77460-00

DATE: 2016-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Colin Folkes

Applicant

• and –

Susan Annmarie Bailey Folkes

Respondent

COSTS ENDORSEMENT

Van Melle, J.

Released: June 30, 2016