Court File and Parties

Ontario Court of Justice

Date: 2016-11-04

Court File No.: Brampton 699-14

Between:

Leticia Osei Applicant

— And —

Raymond Berimah Respondent

Before: Justice Philip J. Clay

Costs Submissions

Reasons for Order released on November 4, 2016

Counsel:

• Mr. O. Santos — counsel for the applicant
• Mr. A. Chima — counsel for the respondent

Decision

CLAY J.:

BACKGROUND

[1] I released a decision on July 8, 2016 after a summary hearing in this matter heard on July 8. The order provided that the parties could make costs submissions and filing deadlines were set out. I received and reviewed the applicant's submissions, the respondent's submissions, and the applicant's reply.

THE LAW

[2] Costs in family law matters are governed by Rule 24 of the Family Law Rules. The sub-sections relevant to this matter read as follows:

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

DIVIDED SUCCESS

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).

ANALYSIS

[3] This was not a difficult case either legally or factually. Mr. Santos seeks costs on the basis of late disclosure that prevented him from being able to make an offer to settle. He also maintains that the trial was made necessary by the failure of the respondent to provide affidavit evidence on the issues before the court. He states that the court did make an order for ongoing child support that is much higher than the amount that the respondent proposed. Mr. Chima states that there should be no costs. He says that there was divided success. The ultimate calculation of arrears was much less than the applicant sought and much closer to the number set out by the respondent.

Disclosure Issues

[4] The parties entered into Minutes of Settlement with the assistance of duty counsel on May 25, 2015. The respondent was given until August 31, 2015 to serve and file his financial disclosure which was to include a sworn affidavit that addressed how he supports himself and his position regarding a corporation Raybar Textiles Inc.

[5] Mr. Chima was retained by the case conference on October 8, 2015. No affidavit or disclosure had been provided. Mr. Chima reported that he had poor communication with his client as the respondent had gone to Alberta to find work. A new date of November 20, 2015 was set for disclosure.

[6] The respondent did serve and file an affidavit dated November 16, 2015. He included the statutory declaration of his father. He filed a financial statement also dated November 16. That financial statement was signed by his counsel and that was noted on the face of the document. This was not noticed by Mr. Santos until I pointed it out at the hearing. As noted at the time Mr. Chima's signing of the statement was improper but I also found it was not done with the intention of misleading or deceiving the court.

[7] Mr. Santos stated in his submission of August 5, at paragraph 5, that the respondent:

… chose not to present an affidavit setting out his position on the income or payment history - the issues for Trial have no direct evidence from the father, an incomprehensible disrespect. The only evidence before the court by way of Affidavit was from the mother.

[8] As noted above this statement is not accurate. The respondent's position was set out on November 16, 2015. I note that subsequent to that date there was no order requiring the respondent to file a supplementary affidavit. Both parties were required to file a disclosure brief.

[9] Mr. Santos emphasized in his submissions that the respondent did not provide "most of the truly important information until July 2, 2016." I note that the applicant did file her disclosure brief on March 10 the day it was due for the scheduled March 16 hearing. Mr. Santos notes that the respondent did not file on time and requested an adjournment of the first hearing. I reviewed the endorsement and noted that the adjournment was granted on March 14 because of the death of Mr. Chima's father. Mr. Santos consented to the adjournment. It is unfortunate that he now refers to the brief not being received in a timely way when he knew of counsel's circumstances.

[10] The respondent's disclosure brief was filed on June 14, 2015 within the new timelines set on March 14. It contained all of the relevant information for the summary hearing on July 8, 2016. It is not clear to me why Mr. Santos refers to July 2 as the date for the truly important information.

[11] Mr. Santos was retained on October 30, 2015 and both counsel were present December 17, 2015 and both requested additional disclosure. The applicant did not file the financial statement or affidavit that supported her amended claim for s.7 expenses by the deadline. Ultimately, the applicant withdrew her s.7 claim at the hearing when the parties were able to agree on s.7 wording for a final order.

[12] I find that there was no late disclosure by the respondent that increased the costs of this matter.

Divided Success

[13] By June 14, 2016 both parties had all relevant information to be able to make an informed decision on how this matter could be resolved. Based upon that information, the respondent proposed that he pay child support of $160 per month based upon the income set out in his 2015 Notice of Assessment. His disclosure brief set out that based upon his income for every year since 2011 the respondent had underpaid child support by $2,893.76. The applicant brief sought a child support order based upon an imputed income of $40,000 per year and sought arrears of $18,760.

[14] I found that the respondent should not pay child support in July 2016 on his 2015 income when he had begun a job on June 14, 2015 which paid him $39,124 per year. I ordered on July 14, 2016 that the respondent should pay child support of $349 per month based upon that ongoing income.

[15] With respect to arrears I found that the respondent shall be credited with $3,294 paid directly to the respondent since the order. The respondent did not seek credit for the costs of the SUV he had provided to the applicant and for which he was paying the lease (although neither party had been able to identify the lease payments on the bank statements as being distinct from child support payments until the trial).

[16] Mr. Santos stated that:

This proceeding was made necessary by the father's abandonment of his responsibilities as the employment and payment history manifestly sets out.

[17] I do not find that to be the case. The respondent paid monies to the mother for child support when he was employed and provided her with a vehicle. He only went out to Alberta to seek employment. He lost that employment only when he returned to Ontario to care for his dying mother. It took him time to regain employment after attending to his mother's burial in Ghana in February 2015. All of this information was set out in his affidavit of November 16, 2015. Nevertheless, the applicant pursued child support based upon an imputed income of $40,000 until the trial. As Mr. Chima notes it was only at the trial itself that the applicant conceded that as the respondent only earned $13,004 in 2011 he should not be required to pay child support for that year. Up until then the only information the applicant had put before the court for the 2011 year and every year thereafter was that the respondent should pay child support on $40,000 per year.

[18] I find that there was divided success in the end result. Had the respondent been prepared to pay child support on his ongoing income as of June 14, 2015 he would have been entitled to costs. The applicant's success on the ongoing support issue may be seen to have been fortuitous. She took the position throughout that since the respondent earned $38,668 in 2012 and $37,866 in 2013 that he should be imputed to be able to make $40,000 no matter what his life circumstances were and no matter what his Notices of Assessment disclosed. Fortunately for her position the respondent was able to secure a job making that amount in June 2015.

[19] On the other hand, it was a costly error of judgment on the part of the respondent not to pay child support on what he earned as soon as he obtained the new job in June, 2015, but to try and argue that he should pay on an income in 2015 that only reflected 6.5 month's work.

[20] Upon a finding of divided success Rule 24 (6) permits the court to apportion the costs. I find that in all of the circumstances of this matter the most appropriate step is to order no costs.

ORDER

(1) There shall be no costs awarded in this matter.

Released: November 4, 2016

Justice P.J. Clay