COURT OF APPEAL FOR ONTARIO

CITATION: Holman v. Holman, 2016 ONCA 67

DATE: 20160122

DOCKET: C58098

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

BETWEEN

Carol Dianne Holman

Respondent (Appellant)

and

Bruce Holman

Applicant (Respondent)

Frances M. Wood and Marvin Kurz, for the appellant

Evelyn Huber and Joost K. Heersche, for the respondent

Heard: December 19, 2014

On appeal from the order of Justice Irving W. André of the Superior Court of Justice, dated November 22, 2013.

COSTS ENDORSEMENT

[1] On July 28, 2015, this court released its appeal decision, allowing the appeal in part and recalculating the amounts of child and spousal support owing. In the interests of expediency, the court viewed the record as sufficient to arrive at an appropriate result without the need to order a new trial, while permitting counsel to make further written submissions if necessary. The court also permitted written submissions on costs if the parties were unable to agree.

[2] The parties made further submissions on both issues.

(1) Calculation of Child Support

[3] Dealing first with the child support calculations, each party submitted a calculation correction relating to circumstantial details that were not previously clear to this court: namely, that one of the children, K., was actually living at home with her mother for the 17 months during 2011-13, and that in 2011 the other daughter, P., had no s.7 expenses.

[4] As we noted in footnote #4 of the original decision, we had to make an assumption about where K. was living during the relevant period. Counsel for the father also concedes that K. was living with her mother during that time. Accordingly, subject to a minor calculation error in the mother’s submissions, we have no concerns about making the first requested correction. Taking account of para. 41 of the trial judge’s reasons, we also accept the father’s submission in relation to P.’s s.7 post-secondary expenses in 2011. Accordingly, we accept the submissions of both parties for the corrections in relation to child support that affect paragraphs 48 to 50 and 55 of the appeal judgment. These paragraphs are to be corrected as follows:

[48] Given my conclusions above, and based on a 2009 income of $105,331, 2010 income of $121,791 and a 2011 income of $120,075[^3], Mr. Holman's table child support obligations, as modified by the 2010 order, from June 1, 2010 to May 1, 2013 should have been:

Based on 2009 income of $105,331:

June 1, 2010 to Aug. 31, 2010 (3 months): $1481/ month (2 children) = $4443

Sept. 1, 2010 to Feb. 28, 2011 (6 months): $922/ month (1 child, P.; K. away) = $5532

March 1, 2011 to May 31, 2011 (3 months): $1481/ month (2 children) = $4443

Based on 2010 income of $121,791:

June 1, 2011 to Aug. 31, 2011 (3 months): $1682/ month (2 children) = $5046

Sept. 1, 2011 to Dec. 31, 2011 (4 months): $1682/ month (2 children) = $6728

Jan. 1, 2012 to Feb. 28, 2012 (2 months): $1052/month (1 child, K.; support for P. ended Dec. 31, 2011) = $2104

March 1, 2012 to May 21, 2012 (3 months): $1052/ month (1 child, K.) = $3156

Based on 2011 income of $120,075:

June 1, 2012 to May 1, 2013 (11 months): $1038/ month (1 child, K.) = $11, 418

Adding all of the above equals a total table support sum for the months between June 1, 2010 and May 1, 2013 (35 months) of $42,870.

[49] In terms of s.7 expense payments, the 2010 consent order required Mr. Holman to pay $833/month for both children. This means that from June 1, 2010 to Dec. 31, 2010 (7 months) when he was required to pay support for both children, he should have paid $833 x 7 months = $5831. Once his s.7 obligation for P. ended, I conclude that the motion judge appropriately reduced the $833/month in s.7 expenses by half to $416.50/month. For Jan, 1, 2011 to May 1, 2013 (28 months) this amounts to $416.50/month x 28 months = $11,662, for a total of $11,662 + $5,831 = $17,493. Taking into account the $8,000 credited to Mr. Holman for K.'s contribution to her own s.7 expenses above, this reduces the s.7 payment amount to $17,493 - $8,000 = $9,493.

[50] This brings the total table and s. 7 support amounts that Mr. Holman should have paid under the 2010 consent order from June 1, 2010 to May 1, 2013 to $42,870 in table support plus $9,493 in s. 7 expenses = $52,363.

[55] I would allow the appeal in part. I would delete paragraph 4 of the November 22, 2013 Order and replace it with the following: Ms. Holman shall pay Mr. Holman $30,792 on account of child support which Mr. Holman overpaid. Mr. Holman shall pay Ms. Holman $11,204 on account of spousal support which he underpaid.

(2) Costs at trial and on appeal

[5] At trial, the father was awarded $22,000 in costs. He submits that the costs awarded below should stand, given that the order of the court remains significantly more favourable to him than his offer to the mother. The mother submits that the appeal decision significantly changed the support orders below such that there should be no costs below.

[6] We reject the mother’s submissions. In arriving at his costs award, the trial judge considered a number of factors, including: the complexity of the issues, the conduct of the parties, success achieved and the offers that had been made. The outcome of the appeal does not change the outcome below in a manner that affects the trial judge’s exercise of discretion.

[7] On the eve of trial, the father’s offer stood as follows: (1) the mother need not repay any child support amounts; (2) the father would pay the mother $1,250 per month in spousal support until he reaches age 65.

[8] At trial, the father was awarded a repayment of $42,277 in child support less $1,990 on account of spousal support owing to the mother and spousal support was terminated.

[9] On appeal, the mother’s child support repayment was reduced to $30,792 and the father was ordered to pay $11,204 on account of underpayments of spousal support. The order terminating spousal support was upheld.

[10] The offer the father made prior to trial remains considerably more generous than the result obtained by the mother.

[11] The costs award made by the trial judge is affirmed.

“Alexandra Hoy A.C.J.O.”

"J. Simmons J.A."

"M. Tulloch J.A."