Court File and Parties

Ontario Court of Justice

Date: 2015-06-25

Court File No.: Red Lake, Ontario RL-FO-14-0005-00

Between:

Brent Gary Dick Applicant

— And —

Terrie-Lynn Hicks Respondent

Before: Justice Peter T. Bishop

Heard on: May 29, 2015

Reasons for Judgment on Costs released on: June 25, 2015

Counsel:

• Gill Rumstein — counsel for the applicant(s)
• Thomas J Carten — counsel for the respondent(s)

Reasons for Judgment

Bishop J.:

BACKGROUND

[1] This trial was completed on March 2, 2015. It was adjourned to April 23, 2015 for decision. The matter was then adjourned to May 29, 2015 to address the issue of costs.

[2] Counsel could not agree on the terms of the order pursuant to the written decision which necessitated a further court appearance on May 25, 2015 where direction was given.

[3] The final order was approved and issued on May 29, 2015.

[4] The applicant seeks costs for the litigation and the respondent's position is that no costs should be ordered.

DECISION

[5] I have reviewed Rule 24 of the Family Law Rules as well as Rule 18(4) and the offer to settle and the evidence at trial.

[6] The applicant was successful on the following issues presented at court:

1. The transition day for shared parenting;
2. Texting;
3. Notice of travel out the city;
4. Child support (set off argument);
5. Averaging for determination of support;
6. Method of determining support set off versus modified set off;
7. Percentage contribution to dance costs.

[7] The mother was successful on the child support arrears issue. It is the view of this court that the matter should have been resolved by a motion and not a full trial. All of the issues were resolved between the parties up until the fall of 2014. It then became litigious after the mother's counsel took control. The mother's counsel relies upon the endorsement of Justice Hoshizaki in the settlement conference of November 28, 2014 which reads in part; "if custody and access issues are unresolved, trial may be required". The mother's counsel cannot rely blindly upon that endorsement but rather should take a broader view with respect to resolution in the best interests of the children. It is a hollow argument to say that the Judge ordered it and if we can't agree on everything there must be a trial. The operative word in Justice Hoshizaki's endorsement was "may".

[8] With respect to the retroactive child support issue, the mother was successful with respect to quantum although this was an unusual case where the father's increased income was derived from a plan to which he did not contribute but rather through his mother's estate. The deferred profit sharing plan was treated as income by Revenue Canada and the court agreed with that decision as he paid tax on that portion of the estate proceeds. On the other hand, the court found it would be unfair to average his income using that higher 2010 income because it was a one off payment due to his mother's death.

[9] The mother should have accepted the applicant's offer to settle and only argued the issue of child support and arrears. The father was successful in the quantum of child support that he was obligated to pay as he had a reduced income due to a workplace injury. The mother's counsel insisted on having Dr. Orth's notes which resulted in increased disbursement costs to the father and extra effort in trying to schedule Dr. Orth to testify should he be needed. It was only at the last minute that the mother's counsel agreed that the medical report could be filed without calling Dr. Orth. Mr. Carten ran up costs.

[10] The father wanted to avoid a trial and made every effort to accommodate the mother. On January 22, 2015 he agreed that the exchange day for the children be Wednesday to Wednesday rather than Monday to Monday. This was included in Part A of the offer to settle as well as an agreed upon holiday schedule.

[11] Part B of the offer to settle dealt with financial issues whereby either the custody access and/or financial issues could be resolved or carved off in a very summary manner. It was the uncontradicted evidence of the mother that she only had a trial because she was vindictive as the father reopened matters and took her back to court. In essence the whole matter could have been resolved for approximately $4,000.00 - $5,000.00 in costs rather than the $18,000.00 - $19,000.00 as outlined in the respective parties' bill of costs.

[12] The respondent's position that there should be no costs payable by his client because she has a small net worth. I reject that submission. I am confident that the mother has the ability to pay costs as she has liquid assets of $18,000.00, plus a lump sum retroactive support award of $11,181.41, and an undisclosed line of credit. As well, she will be able to deduct a portion of her legal account pursuant to the income tax act should her counsel deign to provide that to her. The mother was very candid in her evidence at trial as she only changed her position because the father took her back to court. This was unreasonable and did not recognize the reality of the applicant's health and his inability to contribute financially in the way that he had done in the past.

[13] The father's offer with respect to arrears was $4200.00 but the court ordered $11,181.41 so on a lump sum basis the mother was approximately $7000.00 ahead. It must also be considered that the father was offering child support in the amount of $823.00 per month the court ordered $643.00 per month. The end result was that the mother would have been $180.00 per month more in child support had the offer been accepted.

[14] It is highly unlikely that the father's employment income will increase in the foreseeable future due to the change in his work schedule, his bonus availability and his back injury.

[15] At the hearing to finalize the order of April 23, 2015 the father's counsel disclosed that the mother's counsel would not provide time slips to proportion the amount of time allocated to the support and arrears issue on her bill of costs. That amount is an allowable deduction by Revenue Canada from the mother's income tax. This court accepted the reasoning in Pollitt v. Pollitt, 2011 ONSC 3162.

[16] On May 29, 2015, while arguing the costs issue, counsel for the mother stated unequivocally that the father could also deduct his legal fees in this action. This is incorrect, and discloses an ignorance of issues and an argumentative attitude on Mr. Carten's part as only the recipient of support or support arrears may deduct litigation legal fees and not the payor. It appears that Mr Carten is more focused on litigation rather than resolution.

[17] I order that the mother pay costs to the father on a party-to-party basis for the time up to trial in the amount of $10,000.00 plus $1,300.00 HST. I further order that the costs of the trial will be on a full recovery basis of $2,425.00 plus HST in the amount of $315.25 for a total of $14,040.25. This is unfortunate for the mother as the gains made on the arrears issue are consumed by costs which could otherwise be minimized, but for the litigation strategy of her counsel.

[18] I order that these costs be enforceable as child support by the Director of Family Responsibility Office and be deducted from any ongoing support.

Released: June 25, 2015

Signed: "Justice Bishop"