CITATION: Smith v McQuinn, 2017 ONSC 859

COURT FILE NO.: 00-FL-3015A

DATE: 2017/02/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Joseph Augustin Smith, Applicant

AND

Deborah Ann McQuinn, Respondent

BEFORE: Madam Justice A. Doyle

COUNSEL: Mark W. Smith, Counsel for the Applicant

Timothy N. Sullivan, Counsel for the Respondent

HEARD: In writing

ENDORSEMENT

1On December 20, 2016, the Court rendered the following final Order on a motion to change:

(i) no spousal support is payable by the Applicant as of June 1, 2015;

(ii) commencing June 1, 2017, the parties will exchange their most recent income tax return and Notice of Assessment. Spousal support may be varied upon a material change of circumstances;

(iii) the Court dismissed the Respondent’s motion for payment of post-secondary educational expenses; and

(iv) the motion for a finding of contempt against the Applicant was dismissed.

2If the parties were unable to agree on the issue of costs, they were to provide the Court with written submissions.

3Having considered the parties’ written submissions, the Family Law Rules, O. Reg. 114/99 (the “FLRs”), the offers to settle and the divided success, the Court orders no costs.

Applicant’s Position

4The Applicant submits he was successful on all three issues and, as such, is presumptively entitled to costs on a substantial indemnity basis in the amount of $34,397.90

5The Respondent was unreasonable in bringing forward a claim for post-secondary educational expenses dating back 10 years as it was done only as a response to the Applicant’s claim for a termination of spousal support.

6The Applicant’s offer to settle dated July 12, 2016, offered that the Respondent would repay to the Applicant the amount of $15,000 in overpaid support and costs of $10,000. Spousal support would terminate as of January 1, 2013.

7In his offer to settle of November 23, 2016, the Applicant provided an offer that the Respondent would repay the amount of $7,500 to the Applicant.

8The original motion scheduled for July 21, 2016 had to be adjourned as a result of the Respondent filing a motion for contempt and a new affidavit supporting the same. The Applicant was granted an adjournment to respond and file responding materials to this new claim.

Respondent’s Position

9The Respondent is requesting costs or alternatively, that each party bear their own costs. His costs on a substantial indemnity basis are $36,958.23.

10The Applicant did not proceed with his divorce and was unsuccessful in the termination of support. The Court required ongoing disclosure obligations pending a material change. His life insurance obligation was not terminated but in any event, he did not have the life insurance in place.

11The Respondent’s offer to settle requested an end to spousal support as of December 2, 2013 but also required him to pay $45,000 towards the children’s university expenses.

12The Applicant caused the delays from December 2012 until the final hearing in November 2016. There were no material steps taken to advance the application until January 2014.

13There were many adjournments for various reasons in the proceedings. The Court did not have a proper affidavit before Justice Warkentin when an emergency motion to suspend support was brought by the Applicant. The Applicant did not file a Factum before Justice Phillips, hence the motion could not proceed ($750 of costs awarded to the Respondent). Furthermore, a case conference was struck as the Applicant had not filed a brief; questioning was postponed three times due the Applicant’s lack of production of court ordered disclosure, and there was misinformation to the Respondent that a case conference was taking place on March 21, 2013 when in fact it was not. Justice Minnema reserved costs on the motion before him.

14The Respondent was being economic in bringing her claim for educational expenses when the matter was already before the courts. Although the motion for contempt was dismissed, the Applicant’s conduct was unreasonable in failing to provide security and should attract costs.

The Law

15The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 at para. 8 stated that the cost rules are designed for these fundamental purposes:

(1) to partially indemnify successful litigants for the cost of litigation;

(2) to encourage settlement, and

(3) to discourage and sanction inappropriate behavior by litigants.

16The Court finds that there was divided success among the parties. Firstly, the Applicant did not succeed in a retroactive repayment as set out in his two offers to settle. Spousal support was not terminated but rather not payable at this time. Annual exchange of disclosure was required as the issue of spousal support remains a live issue.

17The Respondent was not successful. Although offering to end support earlier, she expected payment of $45,000 for educational expenses in one offer and $75,000 in the last offer of November 2016.

18The Court has considered FLR 24 (11).

(v) The importance complexity and difficulty of the issues:

The issues were not complex but the case was mired with delays and missteps and, although both parties contributed to the delay, the Court finds that the Applicant, as the moving party, was primarily responsible for many delays.

(vi) The reasonableness or unreasonableness of each party’s behaviour in the case:

The Court finds that the both parties took diametrically opposite positions and were inflexible in their respective positions to try to resolve the matters before the Court.

iii) The lawyer’s rates and the time spent on the motion, expenses incurred, expenses properly paid or payable;

The Court has reviewed both parties’ bill of costs and notes that this litigation has costs both parties a significant amount in legal costs.

19In Islam v. Rahman, 2007 ONCA 622, the Court of Appeal at para. 2 stated :

However, we accept the appellant's submission that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue. Rule 24(10) of the Family Law Rules provides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the Respondent, the trial judge should have disallowed costs claimed by the Respondent in relation to such steps.

20Therefore, given that FLR 24(10) indicates that costs should be decided at each step. The Court has considered the time spent at the motions before me and will not consider those steps where the Court did not address the issue of costs. The only step where costs were reserved was before Justice Minnema. Given the divided success and neither party obtained a final order more favourable than their offers to settle, there will be no costs.