Court File and Parties

COURT FILE NO.: 4396/15

DATE: 2019-06-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOUGLAS VERKAIK, Applicant

AND:

ANN VERKAIK, Respondent

BEFORE: D. Fitzpatrick J.

COUNSEL: Paul McInnis, for the Applicant Ann Verkaik, Self-represented

COSTS ENDORSEMENT

[1] I have reviewed the submissions of both parties respecting costs in this matter. The Applicant was represented by counsel throughout this Application. He seeks costs of $82,001.61. The Respondent was self-represented at trial but had counsel earlier in this proceeding. She takes the position that success was divided such that no costs should be awarded to either party.

[2] Ultimately, my task in determining costs is to distill the competing factors enumerated in Rule 24 of the Family Law Rules along with the principle of proportionality to arrive at what is a reasonable and fair award in the circumstances (see Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.)).

[3] The Applicant commenced this Application primarily to vary the $725 child support he was obligated to pay pursuant to Minutes of Settlement dated September 20, 2010 (“Minutes”). The Minutes fixed the $725 monthly support figure for a period of three years ending October 1, 2013 when either party could seek a review of that figure going forward. The $725 per month represented full Guideline support based on the Applicant’s then-agreed income of $80,000. Despite the parties sharing time of their son, Kyle, there was no s.9(a) set off of monthly child support obligations at the time of the Minutes. Mr. Verkaik’s Application sought to reduce his monthly child support obligation from October 1, 2013 forward on the basis of a s.9(a) set off and an income he suggested was reduced.

[4] Most of the time required for this trial was directed at determining the income of the Applicant and Respondent. Each party testified with respect to his/her income and gave evidence seeking to impute a higher income to the other. As set out in my Reasons for Judgment, both parties failed to provide evidence sufficient for me to determine the income for either party or related support. As such, the Applicant’s request to vary the quantum of child support was dismissed. The Minutes obligated the Applicant to pay $725 monthly subject to any adjustment at or following October 1, 2013. Given that I made no adjustment, that $725 monthly payment continues to be payable.

[5] The Applicant’s main argument in support of his claim for enhanced costs is that he met or exceeded the terms of my Judgment in his Offer to Settle dated July 27, 2016. I reject this argument for the reasons set forth below.

[6] “Part A” of the Applicant’s Offer proposed that “neither party shall pay to the other retroactive Table child support or retroactive contribution to section 7 expenses to the date of [the Respondent’s] acceptance of this offer and [the Respondent] shall not have to pay [the Applicant’s] cost of his Affidavit for Uncontested Trial dated February 11, 2016, [the Applicant’s] costs of reproducing copies of pictures pursuant to section 14 of the parties’ Minutes of Settlement dated September 20, 2010, or other costs reserved by Justice Edwards in his Order dated March 16, 2016.”

[7] The Applicant addressed ongoing support in “Part B” of his Offer where he proposed to pay $400.00 monthly commencing on the first day of the month following the Respondent’s acceptance. Additionally in Part B, the Applicant offered to pay 60 per cent of Kyle’s section 7 expenses with the Respondent paying the remaining 40 per cent.

[8] The Applicant addressed outstanding costs in “Part C” of his Offer where he proposed that the Respondent would pay $1,700 in costs ordered by Justice Tzimas on October 8, 2015 and a further $5,833.72 awarded by arbitrator Helen Goudge on October 14, 2015. All such costs were to be paid within thirty days of the date of the Offer.

[9] In “Part D”, the Applicant addressed the Carriage Hills Timeshare. He proposed that the Respondent could elect to either purchase the timeshare from him for $3,000 plus a further $3,000 to reimburse his costs since 2010 or transfer the timeshare to the Applicant for no consideration plus pay him $1,000 for his related costs since 2010.

[10] Each of Parts A, B, C and/or D were open for acceptance individually or together.

[11] Part A of the Applicant’s Offer respecting retroactive child support did not meet or better my Judgment. I dismissed his Application to vary the quantum of ongoing child support. As such, the $725 monthly provided by the Minutes continued from October 1, 2013 forward without adjustment. Mr. Verkaik’s evidence at trial was that he unilaterally ceased paying child support at or around October 1, 2013. Regardless, the $725 monthly continued to accrue such that he owes retroactive Table child support in that amount monthly from October 1, 2013 forward. Obviously, this is considerably worse than the zero retroactive support proposed in his July 27, 2016 Offer.

[12] Part B of the Applicant’s Offer respecting ongoing support did not meet or better my Judgment. Again, the Applicant continues to be obligated to pay $725 in monthly child support pursuant to the Minutes. His Offer proposed a payment of $400.00 monthly.

[13] Part C of the Applicant’s Offer did not meet or exceed my Judgment. I dismissed that part of his Application seeking payment by the Respondent for her share of Helen Goudge’s arbitration fees. I made no order requiring the Respondent to make any payment to Ms. Goudge for fees or costs.

[14] Finally, Part D of the Applicant’s Offer did not meet or better my Judgment respecting the Carriage Hills Timeshare. The Minutes obligated the Applicant to pay $3,000 to the Respondent for her interests in the timeshare. I did not disturb this term except to the extent of providing the Applicant a credit of $1,722.78 representing one-half of the Applicant’s costs related to the timeshare from 2010 given this was a joint asset. The $1,722.78 is costs that the Respondent owed as a joint owner. As such, the Applicant was directed to pay the Respondent $1,277.22 for her interest in the timeshare with such payment set off against monies I determined owing by the Respondent to the Applicant. This result was worse than the $1,000 payment by the Respondent to the Applicant for her interest in the timeshare proposed in the Applicant’s Offer.

[15] The Applicant did have some success respecting two issues in his Offer.

[16] A modest success was achieved respecting the Applicant’s costs of copying family photographs. Part A of his Offer proposed no reimbursement by the Respondent for the Applicant’s costs to copy pictures from this relationship. My Judgment directed the Respondent to pay these costs in the amount of $846.55.

[17] The Applicant’s biggest success from the trial was with respect to retroactive section 7 expenses. My Judgment directed the Respondent to reimburse the Applicant in the amount of $12,516.19 representing her 50 per cent share of Kyle’s retroactive section 7 expenses. Part A of the Applicant’s Offer proposed no payment towards retroactive section 7 expenses by the Respondent up to the date of her acceptance.

[18] I also note that Part B proposed that the Applicant pay 60 per cent of Kyle’s ongoing section 7 expenses with the Respondent paying 40 per cent. As I have noted, the evidence provided by the parties was not sufficient for me to determine their respective incomes or, by relation, for me to determine child support obligations, including apportioning section 7 expenses. As such, the 50/50 split of these expenses provided by the Minutes continued.

[19] I dismissed the Applicant’s request to adjust the 50/50 sharing of these expenses. In these circumstances, where no go-forward order was made, I do not consider that the Applicant matched or exceeded his Offer even though the practical reality is that the 50 per cent share he is required to contribute pursuant to the Minutes is less than the 60 per cent he proposed in Part B.

[20] The two items where the Applicant’s Offer bettered my Judgment were not stand alone terms available for acceptance independent of any other parts of the Offer. These items were bundled in Part A of the Offer with other terms that the Applicant failed to meet. As such, the Applicant is unable to say that he matched any of Part A, B, C or D thereby meeting or beating the terms of my Judgment.

[21] The Respondent also made an Offer dated April 26, 2017. The Offer was twelve paragraphs presented “to settle all issues”. The terms could only be accepted together and not individually. The Respondent’s Offer did not match or exceed the results she achieved in my Judgement.

[22] Rule 18(14) of the Family Law Rules was not engaged by any Offer.

[23] Ultimately, I am left with the Applicant being unsuccessful on the primary head of relief he sought in the Application, namely his request to adjust and reduce his child support obligations. He met with some success obtaining compensation from the Respondent for her share of Kyle’s historic section 7 expenses and towards his costs to copy family photos. I do note that the Respondent failed to persuade the Court respecting her own income or that of the Applicant. I consider the outcome overall to be of mixed success. That conclusion does not, however, end my analysis.

[24] Given my view of divided success on this trial, I might have been inclined towards making no order for costs. I cannot do so without considering the conduct of the parties.

[25] It is completely accurate to state that the Applicant failed to provide sufficient evidence for me to determine his income. I have stated that directly in my Judgment. That finding should not be misinterpreted. I did not say that Mr. Verkaik failed to provide adequate or timely disclosure. I found that the financial evidence he provided lacked the necessary analysis by a qualified expert for me to determine his income.

[26] I have a much different view respecting the Respondent’s disclosure, which I expressed at paragraph 40 of my Judgment as follows:

She was clearly not prepared for this trial. The trial had to be suspended more than once to permit her the opportunity to prepare. She made disclosure as the trial went along up to its conclusion. Generally, Ms. Verkaik’s evidence was disorganized, opaque, at times, incoherent.

[27] There is absolutely no doubt that the Respondent’s conduct in relation to this trial increased the amount of time needed for me to hear this case and the Applicant’s costs. She was unprepared without meaningful explanation. Again, I point to the fact that this trial was entirely focussed on financial issues, primarily income and related support. The Respondent has an extensive financial background and operates a real property based business with similarities to the Applicant’s. With this in mind and regardless, the Respondent was expected to make disclosure well before the commencement of this trial and to be prepared for this trial at its commencement. Her participation in this trial provided virtually no assistance to the determination of the issues and significantly prolonged the hearing.

[28] The Respondent’s unpreparedness does direct me to award some costs to the Applicant pursuant to Rule 24(7) of the Family Law Rules. This case had relatively few issues and only two witnesses, namely each party. The trial was scheduled for three days, which should have been sufficient time. While I appreciate that cases do extend beyond the initial time estimates for legitimate reasons, the extra three whole or part days this trial consumed largely lay at the feet of the Respondent.

[29] Given all of the above, I believe it would be reasonable and fair to award costs to the Applicant payable by the Respondent in the fixed amount of $20,000 payable within 30 days. Order to go accordingly.

D. Fitzpatrick J.

Date: June 10, 2019