Citation and Court Information
CITATION: Shouldice v. Shouldice, 2017 ONSC 1045
COURT FILE NO.: FC-13-2819
DATE: 2017/10/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Wade L. Smith, for the Applicant
Carol J. Craig, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[1] It is difficult to award costs to one or other parent in a case where I have found that they did not follow the recommendations made for them by a jointly retained parenting professional and by failing to do so were not acting in the best interests of their children. My reasons detail other errors and omissions by each parent that contributed to the parenting conflict and relationship problems for the children and their father.
[2] The mother obtained an order for sole custody whereas the father sought joint custody. However the offer to settle the mother made with respect to his access to the children was inadequate in the context of a high conflict case. Her offer proposed that access would be in accordance with the professional recommendations, which were not set out in the offer. This left open the possibility of disagreement as to what exactly would be included in an order made on the basis of the offer, if accepted. I found the offer disingenuous too, in the sense that the mother had not acted on those recommendations that were within her control before or after she made the offer.
[3] The father submits he enjoyed divided success on the other parenting issues. This is certainly not the case by comparison to the offer he made. Many aspects of his offer were not ordered by the court.
[4] Both parties claim some success on the property issues. The Applicant submits her offer was “relatively” close to what was achieved at trial. My order was for the sale of both remaining real properties, whereas her offer sought the transfer of both to herself. This transfer would have amounted to a potential $186,500 being transferred to her from the Respondent. I found she was entitled to $62,514 by way of combined equalization payment and post separation adjustments.
[5] The Respondent’s offer on property was also unrealistic. The first option provided for the sale of both properties and the allocation of the net proceeds to pay off the Respondent’s post separation debt and legal fees, to the tune of $213,000. This would have allocated some $90,000 more to the Respondent’s side of the ledger than did the court order.
[6] The second option was more than $76,000 above the court order.
[7] I conclude that both parties failed to achieve success on the property issues.
[8] It is also difficult to identify a more successful party on the issue of spousal support. I dismissed the claim the Applicant made at trial for lump sum spousal support calculated by reference to the SSAG without child support formula. The Applicant’s offer was vague on spousal support. It said that the Respondent “shall not be required to pay spousal support.” No provision for release clauses was made. The Respondent’s offer was clear, calling for no spousal support and mutual releases.
[9] The order I made did not require spousal support at this time but left open the Applicant’s entitlement to seek spousal support in future.
[10] The mother had more success on the issue of child support. My award was $1,014 per month starting January 1, 2017, whereas the mother’s claim was for $1,546 per month commencing June 1, 2016. The father proposed to pay no child support until he voluntarily returned to work at an unspecified future time.
[11] I note that although I have analyzed the offers on an issue by issue basis only the Respondent’s offer was capable of acceptance in this format. The Applicant’s offer was a comprehensive package. This is an important distinction to keep in mind.
[12] The case was individually case managed. Undoubtedly the case management judge took advantage of various opportunities to address settlement with the parties. A formal conference dedicated only to settlement was not held. The Respondent says that the Applicant refused to attend a settlement conference. The Applicant says that the case management judge made it clear in March 2016 that the case had no chance of settlement and should simply proceed to trial. This is not endorsed and the Respondent does not agree it was said.
[13] Be that as it may, a formal conference dedicated only to settlement ought to have been held. I find that the Respondent asked for a last minute settlement conference before trial and that the Applicant resisted.
[14] As with so much in this case, this observation must be balanced with the several admitted breaches of court orders and falsehoods told by the Respondent, as detailed in my reasons for judgment.
[15] I readily conclude that neither party should receive any costs in relation to the parenting issues, property issues or spousal support. I have decided that the Respondent should pay costs in relation to the issue of child support. I made a finding in my reasons that he had made financial decisions that preferred himself over his support obligation. Having regard to the absence of admissible opinion evidence that he was unable to work, whether at all, or part time or in a less stressful job, his position on child support was not likely to, and in fact did not succeed. I find that the Respondent was not assiduous in the attention he paid to the financial well-being of his children.
[16] In the result I award the Applicant partial recovery costs related to child support. This includes some of the time and expense in presenting the evidence on income determination and ability to work. I have taken note that the Applicant did not offer to settle this issue on a stand-alone basis, and that her success was not complete on the issue. I fix her costs at $7,500 and direct that this award is enforceable by the Family Responsibility Office.
J. Mackinnon J.
Released: February 13, 2017
CITATION: Shouldice v. Shouldice, 2017 ONSC 1045
COURT FILE NO.: FC-13-2819
DATE: 2017/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Wade L. Smith, for the Applicant
Carol J. Craig, for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: February 13, 2017