CITATION: Roloson v. Clyde, 2017 ONSC 5255

COURT FILE NO.: F 2065/05

DATE: 2017/09/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Ann Roloson

Applicant

– and –

Richard Scott Clyde

Respondent

Self-Represented

Kirsten Hughes, for the Respondent

The Honourable Madam Justice D. L. Chappel

REASONS FOR JUDGMENT RESPECTING COSTS

PART I: INTRODUCTION

[1] On June 13, 2017, I released Reasons for Judgment in connection with a trial that I heard in this matter over a period of 11 days, from October 18, 2016 until December 9, 2016. The trial related to a Motion to Change Final Order which the Applicant had commenced in September 2017. The issues that were addressed during the trial related to the child of the parties’ relationship, Tanner Justin Clyde, born July 18, 2003 (“Tanner”). In particular, I was required to determine the issues of custody, time sharing, retroactive child support and ongoing child support.

[2] At the conclusion of trial, I invited the parties to file Written Submissions if they were seeking costs in connection with the application and the trial. The Applicant has advanced a claim for costs in the amount of $21,513.00.00. The Respondent’s position is that there should be no order for costs. For the reasons that follow, I have ordered that there shall be no costs payable by either party in connection with the application and the trial.

PART II: POSITIONS OF THE PARTIES

[3] The Applicant submits that she was clearly the successful party in this matter, and that she is therefore presumptively entitled to costs. In support of this point, she notes that one of the main issues to be determined at trial was custody, and that she succeeded in obtaining an order for sole custody of Tanner. She also relies on numerous findings of fact that I made in her favour in my Reasons for Judgment. The Applicant argued that the trial of the custody and time-sharing issues was required due to the Respondent’s history of disrespecting her parental role, his repeated breaches of the previous custody and access order, and his lack of appreciation for and attention to Tanner’s emotional, physical and emotional needs. She suggested that the Respondent’s conduct during the trial was unreasonable and prolonged the hearing, whereas she was well prepared and conducted herself in a fair manner. The Applicant also referred to an Offer to Settle that the Respondent served just prior to the commencement of the trial, which she states was much less favourable to the Respondent than the order that I made following the trial. However, neither she nor the Respondent attached a copy of this Offer to Settle to their Costs Submissions.

[4] The Respondent takes the position that the Applicant is not entitled to costs. He disputes the Applicant’s suggestion that she was more successful overall than him at trial, and argues that success was in fact divided. Furthermore, he argues that the Applicant’s litigation conduct was so unreasonable throughout the entire course of the proceedings and the trial that a costs award in her favour would be inappropriate and would significantly undermine the fundamental objectives of the Family Law Rules. In this regard, he highlighted the fact that the Applicant breached numerous court orders and directions, failed to pay costs orders, repeatedly neglected to provide full and timely disclosure, initiated inappropriate interim proceedings and failed to comply with the most basic procedural requirements. He also relied on the Applicant’s lack of proper preparation and organization for the trial, which he submitted resulted in a significant prolongation of the anticipated trial time. With respect to the quantum of costs that the Applicant requests, he submits that there is no basis for her claim for costs on a full recovery basis, and that the costs claimed are excessive. On this issue, he again relies on the Applicant’s history of unreasonable litigation conduct, and emphasizes that the Respondent failed to serve an Offer to Settle. Finally, the Respondent stresses that he was required to incur significant legal costs as well, and that he is not claiming costs against the Applicant despite the divided success in the case.

PART III: THE LAW RESPECTING LIABILITY FOR COSTS

I. General Principles

[5] The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or Rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules, O. Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion.

[6] The Ontario Court of Appeal established in Serra v. Serra, [2009] O.J. No. 1905, 2009 ONCA 395, 2009 CarswellOnt 2475 (C.A.) that modern rules respecting costs aim to foster the following three fundamental purposes:

1. To partially indemnify successful litigants for the cost of litigation;

2. To encourage settlement; and

3. To discourage and sanction inappropriate behaviour by litigants.

[7] In seeking to advance these objectives, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

[8] The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors (Andrews v. Andrews, 1980 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181; 2003 CarswellOnt 3606 (C.A.); Fielding v. Fielding, 2015 ONCA 901 (C.A.)).

II. Liability for Costs

1. Costs Liability to be Determined After Each Step in the Case

[9] As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(10) establishes the general principle that the court should determine the issue of costs promptly after each step in the case. If a specific order for costs is not made at the end of a step in the case, including a conference or motion, or costs are not reserved, a judge dealing with a subsequent step or the trial judge should not generally consider the costs associated with that step when determining costs (Islam v. Rahman, 2007 ONCA 622, 2007 CarswellOnt 5718 (C.A.); Bortnikov v. Rakitova, 2016 ONCA 427 (C.A.)).

2. Success in the Case

[10] Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. The court may also award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that the court may consider appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, [2009] O.J. No. 4161 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)). If the parties have reached a negotiated resolution of the issues in their case, costs can nonetheless be ordered if the court determines that one party was more successful overall than the other party (Johanns v. Fulford, [2011] O.J. No. 4071 (S.C.J.)).

[11] Rule 24(6) provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. However, the determination of whether success was truly “divided” requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues that required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.)).

3. Successful Party May Be Denied Costs or Found Liable For Costs

[12] Rule 24(4) provides that the presumption that a successful party is entitled to costs does not apply where that party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs. Rule 24(5) sets out factors that the court must examine when deciding whether a party has acted reasonably or unreasonably. These factors include the party’s behaviour in relation to the issues from the time they arose, whether the party made an Offer to Settle, the reasonableness of any Offer to Settle that the party made, and any Offer to Settle the party withdrew or failed to accept. It is not any type of unreasonable conduct that will disentitle a successful party to costs. In the context of a custody and access dispute, a pattern of conduct which shows lack of respect for the letter and spirit of court orders or the relationship between a parent and child is the type of behaviour which should cause the court to seriously question the appropriateness of a costs award in favour of the successful party in a proceeding involving the child (Horne v.Crowder, 2015 ONSC 1041 (S.C.J)).

[13] Since costs are ultimately in the discretion of the court, a successful party may be denied costs for reasons other than unreasonable conduct (M. (C.A.)). In this regard, Rule 24 establishes additional presumptions regarding entitlement to costs that apply regardless of success. Rule 24(7) stipulates that if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party “unless the court orders otherwise in the interests of justice.” A finding that a party has acted in bad faith will also result in liability for costs as against the offending party, regardless of that party’s success. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. This costs provision is subject to the general principle that costs claimed must be reasonable. Perkins, J. described the concept of “bad faith” within the meaning of this Rule in S.(C.) v. S. (M.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.), aff’d 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.) as follows:

In order to come within the meaning of bad faith in rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court… The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

(See also Scalia v. Scalia, 2015 ONCA 492 (C.A.)).

[14] In Children’s Aid Society of the Region of Peel v. K.J.F. and K.P.F., 2009 ONCJ 252 (O.C.J.), at para. 25, Clark, J. further explained that the concept of bad faith within the meaning of Rule 24(8) is not synonymous with bad judgment or negligence. Rather, as he stated, “it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. What this means is that bad faith involves intentional duplicity, obstruction or obfuscation.”

4. Entitlement of Self-Represented Litigants to Costs

[15] The Ontario Court of Appeal established in Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.) that self-represented litigants may be entitled to costs in appropriate circumstances. As an example of such circumstances, the court held that self-represented litigants may be awarded costs if they devote the time and effort in doing the work typically carried out by legal counsel, and they can establish that they have suffered a lost opportunity cost by foregoing remunerative activity as a result. However, the court emphasized that self-represented parties should not be compensated for costs relating to time and effort that any litigant would have reasonably had to devote to the case if they were represented by counsel.

[16] Some cases decided since Fong have held that a loss of remunerative opportunity is an absolute precondition to awarding costs to self-represented litigants (see for example Mustang Investigations v. Ironside, 2010 ONSC 3444 (Ont. Div. Ct.); Gibson v. Duncan, 2013 ONSC 6245 (S.C.J.)) However, in recent years, many judges addressing costs in Family Law litigation have extended the availability of costs to self-represented parties who have not foregone remunerative activity to work on their case, provided that the costs claimed relate to tasks that would typically be carried out by legal counsel. For instance, in Jahn-Cartwright v. Cartwright, 2010 ONSC 2263, 2010 CarswellOnt 5657 (S.C.J.) and Cassidy v. Cassidy, 2011 CarswellOnt 1541 (Ont. S.C.J.), Price, J. held that the focus in addressing costs in favour of self-represented parties must be on the value of the work done, which involves assessing not only the value of the time spent to the litigant who performed the work but also the usefulness of the work to the court. Price, J. also held that in quantifying the value of the time spent to the litigant, one measure to use is the income which the litigant could have earned otherwise if they were not working on their legal case. Many subsequent cases have reflected this broader approach. Judges in these cases have highlighted the unfairness of denying costs awards to self-represented litigants who do not earn income, and have emphasized that such an approach augments the risk of these litigants being subjected to inappropriate litigation conduct by the other parties (see Izyuk v. Bilousov, 2011 ONSC 7476, [2011] O.J. No. 5814, 2011 CarswellOnt 14392 (S.C.J.)); Witter v. Gong, 2016 ONCJ 722 (O.C.J.); McMurter v. McMurter, 2017 ONSC 725 (S.C.J.)).

5. The Importance of Offers to Settle in Determining Liability for Costs

[17] Another important consideration in determining both entitlement to and the quantum of costs is whether or not any party has served an Offer to Settle. Rule 18(14) establishes costs consequences for failing to accept an Offer to Settle that complies with the requirements of that Rule. In order for these costs consequences to come into play, the Offer to Settle must be signed by the party making the offer and their lawyer. Failure to comply with this requirement may result in the offer not being a valid formal offer that attracts the consequences outlined in Rule 18(14) (Riss v. Greenhough, 2003 CarswellOnt 1450 (S.C.J.); Jakubowski v. Kopacz-Jakubowski, 2008 CarswellOnt 2149 (S.C.J.)). The costs consequences, and conditions precedent to these consequences, are set out in Rule 18(14) as follows:

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

Rule 18(14)

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[18] With respect to the requirement that the order obtained be as or more favourable than the Offer to Settle, the court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. Rather, what is required is a general assessment of the overall comparability of the offer as contrasted with the order that was ultimately made (Sepiashvili v. Sepiashvili, 2001 25708 (ON SC), 2001 CarswellOnt 3459 (S.C.J.), additional reasons to 2001 CarswellOnt 3316 (S.C.J.); Wilson v. Kovalev, 2016 ONSC 163 (S.C.J.); Jackson). Where the Offer to Settle is not severable, however, the costs consequences set out in Rule 18(14) should only be applied if the judgment is on a general, overall comparison as or more favourable on all issues (Heon v. Heon, 1989 CarswellOnt 318 (Ont. H.C.); Coscarella v. Coscarella, 2000 CarswellOnt 146 (S.C.J.)).

[19] In deciding both liability for and quantum of costs, the court may also take into consideration as a favourable factor any written Offer to Settle, the date it was made and its terms, even if the conditions and presumptive consequences set out in Rule 18(14) do not apply (Rule 18(16)). In this regard, the court may in the exercise of its discretion compare portions of the Offer to Settle dealing with discrete issues to the terms of the order. A party’s failure to serve an Offer to Settle is also a highly relevant factor in determining both liability for costs and the appropriate amount of a costs award (M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (O.C.J.); Menchella v. Menchella, 2013 ONSC 367 (S.C.J.); Potter v. DaSilva, 2014 ONCJ 443 (O.C.J.)). As Zisman, J. stated in Potter, at para. 22:

Offers to settle play an integral role in saving time and expense by promoting settlements, focusing parties and often narrowing the issues in dispute. Offers to settle are therefore important in any consideration of the issue of costs. In my view, it is unreasonable behaviour for a party not to make an Offer to settle.

[20] The fact that the parties have settled all or some of the issues in the case will also be relevant to the determination of costs liability and the quantum of any costs ordered. Settlement is often a by-product of reasonable behaviour and litigation expectations. Accordingly, the court should be hesitant to order costs when the parties have reached a resolution of their dispute, unless there are compelling reasons to do so (Talbot v. Talbot, 2016 ONSC 1351 (S.C.J.)).

6. Financial Means of the Parties

[21] Although not specified in Rules 24 and 18 as factors in deciding costs, the financial means of the parties, their ability to pay costs and the effect of any costs ruling on the parties and any children are also relevant to the adjudication of liability for costs and the appropriate quantum of a costs award (Tauber v. Tauber, 2000 5747 (ON CA), [2000] O.J. No. 2133; additional reasons at 2000 22280 (ON CA), [2000] O.J. No. 3355 (C.A.); Biant v. Sagoo, 2001 28137 (ON SC), [2001] O.J. No. 3693 (S.C.J.); Van Rassel v. Van Rassel, 2008 56939 (ON SC), [2008] O.J. No. 4410 (S.C.J.); M.(C.A.); Murray v. Murray, 2005 46626 (ON CA), [2005] O.J. No. 5379 (C.A.); Clark v. Clark, 2014 ONCA 175 (C.A.)). The financial means of a custodial parent may be particularly relevant in assessing costs if a costs award would indirectly impact a child in a negative fashion. As the Ontario Court of Appeal stated in M. (C.A.), at para. 42, “[i]n fixing costs, the courts cannot ignore the best interests of the child and thus cannot ignore the impact of a costs award against a custodial parent that would seriously affect the interests of the child.” However, ability to pay will usually only be relevant to the appropriate quantum of costs and how payment should be effected, and not to the issue of liability for costs (Izyuk). In addition, a litigant’s limited financial means will be given less weight in the costs analysis than the court’s determination regarding overall success in the litigation (Biant; Gobin v. Gobin, 2009 CarswellOnt 3452 (O.C.J.)). Furthermore, ability to pay alone cannot override the other factors set out in Rule 24(11) (Peers v. Poupore, 2008 ONCJ 615 (O.C.J.)). A party’s limited financial means will also be accorded less weight if the court finds that the party acted unreasonably. As Curtis, J. stated in Mooney v. Fast, 2013 CarswellOnt 15659 (O.C.J.), “[i]t must be made clear to family law litigants that there is no right to a day in court, or at least, that the right to a day in court is tempered by the requirement that the parties take a clear-headed look at their case before insisting on their day in court.”

[22] The circumstances discussed above are not the only ones which may give rise to costs liability. The decision respecting liability is ultimately a discretionary one that must take into consideration the overall conduct of the parties and all of the circumstances and dynamics of the case.

PART IV: ANALYSIS

[23] Upon carefully considering the general principles outlined above respecting liability for costs, I am not satisfied that the Applicant has made out a claim for costs against the Respondent. In reaching this decision, I have relied heavily on my assessment of the overall success of the parties. I disagree with the Applicant’s argument that she was overall the more successful litigant in this case. Rather, I conclude that success was very much divided. In support of this conclusion, I note as follows:

1. The parties both sought an order for sole custody of Tanner. The Applicant was successful on this issue, as I awarded her sole custody of the child.

2. The parties both sought an order for primary residence of Tanner. Neither of them was successful on this issue, as I granted them equal time-sharing. Accordingly success was divided on the issue of parenting time.

3. The Applicant requested an order prohibiting the Respondent from taking Tanner on vacation to New Brunswick, which has been a summer holiday tradition for the Respondent and his family for several years. I declined to grant her this relief and made an order that both parties could travel within Canada without the consent of the other party. The Respondent was therefore successful on this issue.

4. The Respondent requested changes to the right of first refusal clause that was included in the previous custody and access order dated April 2, 2007, arguing that the clause was too stringent and had caused many challenges between the parties. I agreed with him that the clause was problematic and replaced it with a less stringent right of first refusal provision.

5. The Applicant requested an order retroactively increasing the Respondent’s child support obligation, effective September 2012. I dismissed this claim, and in fact concluded that the Respondent had overpaid the Applicant child support from September 2012 until August, 2015. I also found that the Respondent had acted responsibly and fairly in voluntarily adjusting his child support payments when his income had increased. The Respondent was overwhelmingly the successful party on the retroactive child support issue.

6. The Applicant also requested that I impute income to the Respondent on the basis that he had earned a significant cash income that he had failed to report for income tax purposes. I rejected this argument and did not impute income to the Respondent on this basis.

7. The Respondent requested the full Table amount of child support from the Applicant effective September 2, 2015. He was successful on this issue.

8. The Respondent also requested a variation of the April 2, 2007 order to permit him to claim any Child Tax Benefits and Child Tax Credits relating to Tanner effective August 30, 2015, and requiring the Applicant to cooperate in this process. I granted him this relief, and therefore the Respondent was the successful party on this issue as well.

9. With respect to ongoing child support, I made an order requiring the Respondent to pay the Applicant support in the amount of $501.00 per month commencing June 1, 2017. This amount was less than he had been paying prior to August, 2015, when Tanner began to reside primarily with him. Accordingly, the Respondent was also the successful party on this issue.

10. Finally, on the issue of section 7 expenses, the Respondent requested an order imputing income to the Applicant and requiring her to contribute to special and extraordinary expenses on a proportionate-to income basis. He was successful on these issues. However, he specifically requested an order that the Applicant contribute to the costs of Tanner continuing in Kumon lessons. He was not successful on this issue, as I granted the Applicant custody of Tanner, and she did not agree to Tanner continuing to participate in Kumon instruction. Accordingly, success was divided with respect to section 7 expenses.

[24] In dismissing the Applicant’s claim for costs, I have also given considerable weight to her conduct both leading up to the litigation and throughout the case. The Applicant argued that the Respondent was entirely to blame for the need for these court proceedings. As I discussed at length in my Reasons for Judgment, the Respondent certainly acted inappropriately with respect to custody and access matters on many occasions during the period leading up to the litigation. However, the Applicant also acted inappropriately in numerous situations, and her reactionary responses served to inflame matters to Tanner’s detriment. I concluded that both parties were responsible for the high conflict that had developed between them. With respect to the parties’ litigation conduct, the Respondent and his counsel generally acted in a responsible and reasonable manner throughout the court proceedings. The Respondent’s counsel was well prepared for all steps in the case, including trial, and the Respondent diligently complied with his disclosure obligations and orders of the court. In addition, I find that the Respondent took reasonable positions up until trial and did not initiate any inappropriate interim proceedings. By contrast, throughout the proceedings and at trial, the Applicant frequently engaged in highly unreasonable and irresponsible conduct that had the effect of complicating and prolonging the proceedings and unnecessarily draining the valuable resources of this court. Examples of this conduct include the following:

1. She brought two urgent motions on an ex parte basis in September 2014 to deal with the issue of where Tanner should attend school. The presiding justices determined on both occasions that the test for dealing with the proceedings on an ex parte basis had not been met.

2. As I outlined at paragraph 19 of my Reasons for Judgment, the Applicant failed to comply with numerous orders for disclosure, and did not submit the paperwork required to facilitate the court’s referrals to the Office of the Children’s Lawyer. Her irresponsible attitude towards these issues resulted in orders striking her substantive claims. Notwithstanding her neglect in taking the necessary steps to involve the OCL, she regularly complained that the court was not hearing Tanner’s voice. At the trial management conference, Brown, J. set a deadline for the Applicant to bring a motion to request a judicial interview with Tanner. The Applicant ignored this deadline, but persisted in her Opening Submissions at trial in arguing that the court was not giving any consideration to Tanner’s views, preferences and concerns.

3. The Applicant also blatantly violated the order of Brown, J. dated April 2, 2015 regarding Tanner’s participation on Kumon instruction, and boldly advised Justice Brown in open court that she had no intention of complying.

4. The Applicant brought a motion for a finding of contempt against the Respondent on August 20, 2015, which she then abandoned. This resulted in significant unnecessary expense for the Respondent.

5. Only one month after Pazaratz, J. made a temporary order on August 20, 2015 granting the Respondent primary residence of Tanner, the Applicant brought a further motion seeking primary residence of the child. During submissions, she raised numerous allegations that she did not refer to in her affidavit evidence, and those allegations prompted Pazaratz, J. to make a formal report of possible protection concerns respecting the Respondent to the Children’s Aid Society. The Society did not verify the alleged protection concerns, and the Applicant’s motion was ultimately unsuccessful.

6. The Applicant brought yet another motion on February 5, 2016, seeking primary residence of Tanner and both retroactive and ongoing child support in the amount of $1,000.00 per month. Brown, J. concluded that there was no evidence to support these claims and dismissed the motion.

7. As I noted in my Reasons for Judgment, the Applicant solicited letters from Tanner on several occasions and attempted without success to have those letters introduced as evidence. Furthermore, on November 2, 2015, Pazaratz, J. noted concerns that the Applicant had raised the possibility of involving Tanner in you-tube and social media publicity about the litigation between the parties. Despite direction from the court that it was inappropriate to involve Tanner in the court proceedings in this manner, the Applicant again sought to adduce letters that Tanner had written to the court at trial.

8. As I noted in my Reasons for Judgment at paragraph 30, the Applicant failed to comply with many aspects of the Trial Scheduling Endorsement form of Brown, J. dated February 24, 2016. This resulted in numerous delays during the trial, since she had not produced many documents that were critical to the determination of the issues between the parties. The Respondent was highly cooperative in allowing many documents to be adduced as evidence, despite the Applicant’s production of the documents “on the fly” during the trial process. The Applicant’s inadequate financial disclosure, insufficient preparation and extreme disorganization during the trial process resulted in the trial being significantly longer than it should have been.

9. The Applicant persisted in advancing patently unmeritorious claims respecting the child support issues, while at the same time demonstrating a cavalier and irresponsible approach to her own financial disclosure obligations. An inordinate amount of time was spent during the trial addressing her allegation that income should be imputed to the Respondent and that child support should be increased retroactively. There was simply no evidence whatsoever to support these positions. In fact, I imputed income to the Applicant from 2012 onward, and as noted above, I found that there had been an overpayment of child support to the Applicant.

[25] In support of her argument for costs, the Applicant argues that the Respondent failed to engage in meaningful settlement discussions. Unfortunately, based on the positions that the parties adopted at trial and the evidence that I heard, I am satisfied that there was no reasonable prospect of the parties being able to resolve the issues without a trial. However, Rule 18 of the Family Law Rules reinforces the importance of serving Offers to Settle as a strategy for either fully resolving or streamlining the issues for trial. The Applicant noted in her Costs Submissions that the Respondent served a formal Offer to Settle at the outset of trial. By contrast, there is no evidence that the Applicant served any Offers to Settle either prior to or during the trial. The Applicant’s failure to serve an Offer to Settle is another factor that I have considered in declining to award her costs.

PART V: TERMS OF ORDER TO ISSUE

[26] Based on the foregoing, an order shall issue as follows:

1. There shall be no costs payable in connection with the application and the trial of this matter.

The Honourable Madam Justice Deborah L. Chappel

Released: September 5, 2017

CITATION: Roloson v. Clyde, 2017 ONSC 5255

COURT FILE NO.: F 2065/05

DATE: 2017/09/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Ann Roloson

Applicant

– and –

Richard Scott Clyde

Respondent

REASONS FOR JUDGMENT

Chappel, J.

Released: September 5, 2017