Court File and Parties
COURT FILE NO: FC-19-918 DATE: 2020/02/03
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: John Sinclair Petifer Robson, Applicant AND Marie Carmel Brigitte Pellerin, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Philip Augustine for the Applicant Kerry Fox for the Respondent
HEARD: In Writing
Costs Endorsement
[1] This endorsement addresses costs of a motion and cross-motion heard on October 31, 2019. My reasons for decision are found at 2019 ONSC 6729.
[2] The applicant asks that no costs be awarded to either party. The respondent seeks costs of $9631.37. This amount represents the respondent’s substantial indemnity costs on the issues for which she claims success.
[3] After consideration of the written submission of both parties, I have concluded that no costs should be awarded. My reasons are these.
[4] Each party succeeded on one of two central issues. The applicant obtained an order requiring the respondent to repay $120,000 into their joint line of credit. The respondent succeeded in not having income imputed to her, in paying child support based on her actual income, and in obtaining spousal support in circumstances where the applicant disputed entitlement.
[5] Each party had other partial success. The applicant obtained an order for much of the disclosure he asked for. The respondent obtained some overnight parenting time with their children and a Voice of the Child report from the Office of the Children’s Lawyer.
[6] The offers made by each party were problematic. The applicant did not actually deliver an offer confined to the issues on the motion. He did include in a comprehensive offer dated October 3, 2019 an offer to settle temporary property issues, but the offer was more favourable to him than the outcome of the motion.
[7] The respondent made no offer to address the claim for repayment of the amount of money she unilaterally withdrew against the joint line of credit. Her offer to settle the motion issues was more favourable to herself than the court’s decision, and was described as being as made on an interim without prejudice basis. If accepted, this offer would have left open the possibility of the motion being returned for determination on a with prejudice basis.
[8] The respondent alleges unreasonable behaviour by the applicant in his denial of her entitlement to spousal support and in his request to impute income to her. His position was unsuccessful but that alone does not constitute unreasonable litigation behavior.
[9] I find the applicant was unreasonable in seeking relief on the motion for orders vesting title to real properties in him. This relief is not capable of being awarded on a temporary motion. Although a decision was taken during oral argument not to pursue this claim, the claim was made and required a response.
[10] That said, the respondent engaged in unreasonable conduct when she made the unilateral withdrawal from the line of credit. Her omission of any offer to settle this issue was also unreasonable. In all of these circumstances, based on the outcome of this motion, the offers and the conduct findings made, no costs are awarded to either party.
J. Mackinnon J.
Date: February 3, 2020
COURT FILE NO: FC-19-918 DATE: 2020/02/03
ONTARIO SUPERIOR COURT OF JUSTICE
RE: John Sinclair Petifer Robson, Applicant AND Marie Carmel Brigitte Pellerin, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Philip Augustine for the Applicant Kerry Fox for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: February 3, 2020