Court File and Parties
Court File No.: FS 19-83 Date: 2022 January 7 Ontario Superior Court of Justice
Between: Nordona Smith, Applicant – and – Jeffrey Secord, Respondent
Counsel: Unrepresented, for the Applicant Maybelline Massey, for the Respondent
Heard: Written Submissions on Costs
Before: The Honourable R. J. Harper
Decision on Costs
1The Applicant (Nordona) sought to set aside a separation agreement she entered into with the Respondent (Jeffrey) on December 1, 2017.
2She was not successful in her Application.
3In my judgment I made the following findings that have implications on the issue of costs:
a. Nordona claimed that she had health issues that limited her ability to earn an income. However, she did not provide any medical or counselling records to support her claim. She stated that she did not want her husband to see them. b. She claimed that she did not have independent legal advice (ILA) prior to signing the separation agreement. I found that she did have ILA as evidenced be her lawyer signing the certificate attached to the agreement. This was in addition to her representations in the agreement that she had ILA and understood the agreement and appreciated the consequences of the agreement. c. Negotiations with respect to the terms of the separation agreement took place between the months of September through November 2017. The separation agreement was signed December 1, 2017. d. I find that both parties had independent legal advice. Nordona testified that her counsel, Mr. Davis was not deficient in any way in his representation of her in arriving at the separation agreement that was signed. She stated that he was good lawyer. She also stated that she did not blame him in any of this. She acknowledged that Mr. Davis signed the certificate set out in the agreement that indicated that he gave her independent legal advice and that Nordona understood the agreement and was signing the agreement voluntarily. The Certificate he signed reads in part:
Nordona Smith acknowledged that she completely understood the nature and effect of the Agreement. Nordona Smith executed the Agreement in front of me and confirmed that she was entering into the Agreement of her own volition without any fear, threats, compulsion or influence by Jeffrey Secord or any other person.
e. In the process of negotiating the agreement, counsel for Nordona, Mr. Davis, made a number of suggested amendments to the drafts sent to him from counsel for Jeffrey. His suggested amendments were incorporated into the final agreement that was signed by the parties. f. Mr. Davis did not testify. g. Nordona also acknowledged that she signed the agreement that had a clear representation that she had independent legal advice and that she understood the agreement and appreciated the nature and consequences of the agreement. h. Nordona conceded that there was a clause in the agreement whereby she represented that she was signing the agreement voluntarily and not under any duress.
Financial Disclosure
i. During the negotiations, the parties exchanged financial disclosure. A schedule that set out their respective income assets and liabilities was attached to the separation agreement. j. In her testimony, Nordona stated that Jeffrey did not disclose a property that he had in Florida. This representation was not accurate. I find that Jeffrey disclosed that he had an interest in two properties in Florida and Nordona was aware of this. In fact, Nordona agreed that she had received one half of the proceeds of a property that they both sold in Florida in 2015 or 2016. k. I find that Jeffrey did disclose all of his assets and his debts. Nordona complained that the values ascribed by Jeffrey were not accurate. However, she conceded that she signed the agreement indicating that both parties had accurately and fully set out all of their income, assets and debts at the time of signing the agreement l. The matter did not come to trial until April 2021. She admitted in her cross examinations that during the approximate 23 months that transpired from the date of the Application until trial she did not bring a motion requesting further and better disclosure and proof of values of the assets of Jeffrey. m. I find that it was Nordona who did not fully disclose all of her assets at the time of the agreement. Nor did she in her financial statement that she swore to this court dated March 3, 2019. Prior to her financial statement that she filed only a few days before trial, she never disclosed that she had an interest in 130 Powell Rd. Brantford, Ontario. She led Jeffrey and the court to believe that she was merely a tenant in that property. n. I find that she did not take title to this property nor disclose her beneficial interest in order to hide the fact of her ownership. She purposely misled the court in order to lower the actual value of her assets at the time of the separation negotiations and at the time that she started this action.
4I dismissed Nordona’s claims to set aside any portion of the separation agreement.
The Respondent’s claim for costs
5The Respondent requests that his costs be paid on a full indemnity basis in the amount of $15,582.69, inclusive of disbursements and HST.
6The Respondent relies on Rules 18(14), 24(1), and 24(12)(a)(i-iv) of the Family Law Rules in support of his claim for costs.
7The Respondent was entirely successful in his request to have the Application of the Applicant dismissed in its entirety. As the successful party, the Respondent is entitled to his costs pursuant to Rule 24(1) of the Family Law Rules.
8The Respondent provided two written Offers to Settle, the first dated September 3, 2020 and the second dated December 3, 2020. The Applicant rejected both offers.
9The Respondent submits that in successfully defending the Application and having it dismissed entirely at trial, that he was able to obtain an order that is more favourable than the offer.
10The Respondent is therefore entitled to full recovery of his costs at least as of the date that the written Offers to Settle were served and alternatively, as of the date of the Trial Management / Settlement Conference of the matter which took place on January 8, 2021.
RULE 24(12)(a)(i) – REASONABLENESS OF THE RESPONDENT
11The Respondent acted completely reasonably during the litigation of this matter. He made various reasonable offers to settle. He attended and was prepared for all court attendances. He produced financial disclosure pursuant to the Rules and was not in breach or in default of any court orders.
RULE 24(12)(a) – REASONABLENESS AS IT RELATES TO THE IMPORTANCE AND COMPLEXITY OF THE ISSUES
12The Applicant’s claim to set aside the Separation Agreement of the parties contained various sub-issues which needed to be dealt with individually at the trial. these issues included:
a. unconscionability, b. duress, c. undue influence, d. lack of financial disclosure, e. lack of independent legal advice, f. failure to understand the nature or consequences of the domestic contract, misrepresentation, repudiation, and mistake.
13Litigating all of the above issues made the proceedings unduly complex as she insisted on pursuing each issue in order to attempt to set aside a domestic contract despite the lack of evidence to support her claim.
14The Applicant did not file her court documents pursuant to the Rules and timelines set out therein.
15The Respondent was placed in a position that he had to file the Trial Record for the Applicant as she simply did not do so.
16The Applicant also made representations that she was going to be retaining counsel, which she never did. This caused undue delay in setting the matter down for Trial as the Court had to take into consideration the schedule of the counsel the Applicant had said she was going to retain.
RULE 24(12)(iv) - ANY LEGAL FEES, INCLUDING THE NUMBER OF LAWYERS AND THEIR RATE and TIME SPENT
17I have reviewed the bill of costs submitted by the Respondent. I find that the hourly rates charged by counsel are appropriate and the time spent in order to properly effect her professional duties to her client given the unreasonable conduct of the Applicant was also appropriate.
Both parties have a duty to make efforts to settle their dispute. I agree with Justice Sherr in J.N.M. v. A.T., 2018 ONCJ 668, by Justice S. B. Sherr at paragraph 7 which reads:
7 This court wrote about the importance of making offers to settle in paragraphs 4-5 of Klinkhammer v. Dolan, 2009 ONCJ 774, [2009] O.J. No. 6370 (Ont. C.J.), as follows:
4 It was surprising that there were no formal offers to settle in this case. It is reflective of the polarity of the parties. It should be a fundamental step in any family law case to serve at least one offer to settle. Parties and their counsel now have a mandate under subrule 2(4) of the rules, to promote the primary objective of the rules; to deal with cases justly (subrule 2(2)). Dealing with a case justly includes taking steps to save time and expense (subrule 2(3)). Offers to settle play an important role in saving time and expense in a case. They are an important vehicle in promoting settlements, focus the parties and often narrow the issues in dispute.
18The Applicant did not make any effort. The Respondent served and filed two offers in his attempt to settle. Given the fact that he was entirely successful, I find that the results he obtained after trial are better then his offers.
19As a result of the above findings and analysis, the Applicant shall pay costs to the Respondent in the total sum of $15,582.69, inclusive of disbursements and HST.
Harper, J.
Released: January 7, 2022