Wilson v. Wilson, 2017 ONSC 4949

1My Decision on Motions dated July 5, 2017, invited costs submissions within a given time period. Submissions were received from the applicant, but not the respondent. My Decision on Costs was released on August 11, 2017. Subsequently, it was discovered that indeed the respondent had filed its costs submission, but that these had gone astray and not come to my attention when doing the costs decision. I have reviewed the respondent’s submissions in order to see whether the Decision on Costs should be varied.

2The costs award was based on findings that the respondent had not provided disclosure as and when required by the Family Law Rules, even after the applicant’s motions for disclosure were brought, in that it was late, incomplete, inaccurate and inappropriately recorded. Furthermore, I found that he had behaved unreasonably and acted in bad faith. The latter, under the Family Law Rules, required that he be ordered to pay full recovery costs.

3The respondent’s costs submissions indicate that some disclosure had been made before or during the applicant’s motion. That was never in doubt and is consistent with the reasoning in the Decision on Costs. That is, the disclosure was late and incomplete. That he has paid for valuation costs, has paid other costs awards, has concern about the applicant dissipating assets, has paid spousal support, and has attended scheduled court appearances does not alter the fact that his performance with respect to disclosure has not been satisfactory. If, as submitted, disclosure issues could have been resolved through a settlement conference or other case management conference process, the respondent could have suggested that. There was certainly lots of time in the year between July, 2016 when the applicant’s second disclosure motion was brought and June, 2017 when the hearing of that motion was completed, to do so. The court would have welcomed that initiative.

4To be clear, it is not a matter of deciding which of the parties has performed relatively better and is “on the side of angels”, to use the respondent’s phrase. The respondent’s conduct is being viewed on its own merits. If he had brought a motion for disclosure, or if the applicant’s motion for disclosure had been found to be without merit, the situation might have been different.

5In summary, I see no reason to vary the decision on costs of August 11, 2017.

James A. S. Wilcox