Court File and Parties

BARRIE COURT FILE NO.: FC-18-548-00

DATE: 20200207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Thomas McCombe, Applicant

AND:

Laura Marie McCombe, Respondent

BEFORE: The Hon. Madam Justice S.E. Healey

COUNSEL: M.A. Cummings, Counsel for the Applicant C. Allen, Counsel for the Respondent

HEARD: By written submissions

ENDORSEMENT ON COSTS

[1] Both the applicant and the respondent seek costs of the motions heard by this court on November 29, 2019.

[2] I have reviewed the written submissions.

[3] It is very difficult to evaluate “success” for these motions. This is a hard-fought case with a long history, and one in which financial disclosure has always plagued the parties.

[4] Each of the points made by Ms. Allen at paragraph 4 of her submissions is accurate. I also agree that the parties had reached a disclosure roadblock in that they fundamentally disagree on whether the disclosure order of Justice Graham has been satisfied. I agree that without the motion having been brought by the respondent this case would not have moved forward. However, no finding was made that the applicant has not complied with the disclosure order. Nor was there a determination that he has fully complied, but only that he has provided substantial disclosure.

[5] While characterizing the disclosure request that forms the basis of Justice Graham’s order of December 7, 2018 as incredibly onerous and detailed, this court also found that the respondent has not been seeking more information from the applicant than he bound himself to provide by consenting to that order. The court also found the applicant’s position with respect to disclosure for 2014 and the Deer Lane property to be problematic - unreasonable, in other words.

[6] The applicant was also unsuccessful in seeking a stay of spousal support.

[7] He was, however, successful in obtaining an order for a proper accounting of the children’s education funds. The court also found that the respondent’s insistence that she had provided a reasonable accounting in the past was problematic - unreasonable, in other words.

[8] The applicant argues that he should have his partial recovery costs up to the date when Mr. Pollock’s letter was first delivered on November 7, 2019, and no reason was provided by the respondent to explain why Mr. Pollock’s work could not have been undertaken before her motion was brought. The accuracy of this latter statement remains uncertain. This was why a process had to be put in place. Mr. Pollock may not be able to arrive at an income determination for the applicant if a critically important document remains outstanding, but that is yet to be determined.

[9] Ultimately, the motion and cross-motion were about disclosure. I disagree that the respondent did not particularize what she believed to remain outstanding; she did so in exhibit “K”. The limits on disclosure that the court imposed in paragraphs 24 to 26 of the endorsement are an attempt to impose proportionality on a disclosure order consented to by the applicant. Given that he is seeking a retroactive adjustment to 2014 for both child and spousal support, along with an order for repayment of support paid during those years, the respondent’s position in trying to ensure that all necessary evidence of his income is before the court at trial is understandable. Yet, whether her insistence on strict compliance with the order was necessary to determine income is unknown.

[10] The offer to settle relied on by the applicant does not meet the requirements of r. 18(14), as I am not satisfied that he obtained an order that is as favourable or more favourable than his offer. I am also unable to find an element of compromise in it, as it invites the respondent simply to proceed to trial on the information provided to date.

[11] In the end, I believe the trial judge will be in the best position to determine whether the respondent’s motion was necessary, on evaluation of her expert’s evidence and the trial results overall. Costs of the respondent’s motion are reserved for the trial judge.

[12] With respect to the applicant’s cross-motion, he was able to obtain an accounting. This had been requested before the motion was brought; the respondent’s answer to the request was unhelpful. Accordingly, I fix modest costs for the cross-motion, bearing in mind that other relief sought by him was dismissed or granted on consent. This court orders that the respondent shall pay the applicant his costs of the cross-motion fixed in the amount of $750 and payable in 30 days.

HEALEY J.

Date: February 7, 2020