Court File and Parties

COURT FILE NO.: 301/20 DATE: 2022-05-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephanie Michelle Niessen, Applicant – and – Kevin John Niessen, Respondent

Counsel: M. VanderSpek, for the Applicant L. Angle, for the Respondent

THE HONOURABLE JUSTICE J. R. HENDERSON

Costs Endorsement

[1] Both parties brought motions that were heard together over the course of two days in January 2022. The applicant now requests her costs of the motions on a substantial indemnity basis. The respondent submits that there should be no costs award.

[2] The motions raised 11 specific issues that were enumerated at paragraph 11 of my written decision dated February 24, 2022. I find that the parties had divided success on these 11 issues.

[3] On the parenting issues, the applicant was successful on issues 1, 3, and 4, and the respondent was successful on issue 2.

[4] On the support issues (issues 5-8), I made spousal and child support orders as requested by the applicant. However, I find that there was also divided success on the support issues. The amounts awarded for spousal and child support were both less than the amounts requested in oral argument by counsel for the applicant. Further, regarding the applicant’s offer to settle, I note that the amount that I ordered for child support was less than the amount set out in the applicant’s offer to settle, but I acknowledge that the applicant exceeded her offer to accept no spousal support.

[5] Moreover, in my view, the most significant support issues related to the incomes of each of the parties, and neither party was successful in their positions before the court. Regarding the respondent’s income, I declined to accept the applicant’s position that I should impute income of $150,000 per year to the respondent. Also, I did not accept the respondent’s position that I should impute income of $30,000 per year to the applicant.

[6] The applicant was not successful in her request for an order under the Partition Act for partition and sale (issue 9). The applicant was successful in her request for an order that the respondent provide further disclosure (issue 11). The parties agreed to an order that severed the claim for divorce (issue 10).

[7] The issues that involved the largest amounts of time at the hearing were the respondent’s request for equal parenting time, the applicant’s request for sole decision-making authority, the applicant’s request to impute income to the respondent, the applicant’s request for partition and sale, and the applicant’s request for disclosure. On these larger issues, the applicant was successful on two, and the respondent was successful on three.

[8] Both parties made offers to settle, but I find that none of the offers engage the provisions of rule 18(14). I accept that the offers to settle are factors for consideration under rule 24, but I find that neither party made an offer that strongly affects my costs decision.

[9] In summary, I find that the parties had fairly evenly divided success on the issues that were before the court. In these circumstances, it is fair, just, and reasonable for the parties to bear their own costs. Therefore, there will be no costs order regarding these motions.

J. R. Henderson J. Released: May 5, 2022