ONTARIO

SUPERIOR COURT OF JUSTICE

KITCHENER COURT FILE NO.: 30794/99
DATE: 2012/03/09

BETWEEN:

LEE ANNE FISHER (ROGERS)

Theodore C. Dueck, for the Applicant

Applicant

• and -

CHRISTOPHER MARK ROGERS

Brian R. Kelly, for the Respondent

Respondent

The Honourable Madam Justice W.L. MacPherson

COSTS ENDORSEMENT

[ 1 ] This was a Motion to Change brought by the Respondent. The trial took five days. My reasons for judgment were released on January 31, 2012. Counsel were invited to make written submissions and I have now had an opportunity to review those submissions.

[ 2 ] The Respondent sought to retroactively reduce the child support payments based on a material change in his circumstances brought about by his decision to sell his dental practice and move to Honduras. I found that the unemployment was not necessitated by the health needs of the Respondent and imputed income to him in line with the income level he had been earning when the initial child support order had been made.

[ 3 ] As a result there were significant arrears of child support and s. 7 expenses for post-secondary education expenses.

[ 4 ] The Applicant is seeking costs of $59,245.60 comprised of fees of $56,189.59 and disbursements of $3,056.01. This is calculated based on partial indemnity costs prior to September 6, 2011 and full indemnity costs for the trial preparation and attendance at trial.

[ 5 ] The Respondent submits that the Applicant is entitled to some costs and does not take issue with the amount of time spent, counsel rates and disbursements. However, the Respondent submits that the award should be based on partial indemnity costs and that these should be reduced to $19,171.55 (a reduction of 60 per cent).

SUCCESS

[ 6 ] The starting point in determining costs is success, with the successful party being presumed to be entitled to recover costs (Rule 24 (1) of the Family Law Rules ).

[ 7 ] To the extent that the Respondent did not succeed in persuading me that his decision to quit the dental practice was necessary due to his health or that the child support should be substantially reduced based on his actual income, the Applicant was the successful party on the Motion to Change and is entitled to costs.

OFFERS TO SETTLE

[ 8 ] Rule 18 deals with Offers to Settle. It describes the cost consequences of failing to accept an offer.

[ 9 ] The Applicant made an Offer to Settle on September 19, 2011. This provided for a payment of $120,000.00 broken down as $100,000.00 for past and future child support and s. 7 expenses; $10,000.00 in interest; $10,000.00 in costs. As the trial commenced on September 21, 2011, the Offer was not served within the time frame contemplated by Rule 18 (14). It was also not signed by the Applicant and as such did not meet the formal requirements of Rule 18.

[ 10 ] Based on the terms of my Order, and the calculations provided by the Applicant, the arrears of table child support and s. 7 expenses were almost $84,000.00. As such, the Offer to Settle made by the Applicant was not more favourable than the Order.

[ 11 ] The Respondent made no Offers to Settle. His position at trial was that he had overpaid child support. In my calculation after giving him credit for the payments made, he owed $65,000.00 for past child support and future child support to April 1, 2012. He also took the position that he did not owe any amount toward the post-secondary education expenses for the two children. He was ordered to pay $37,200.00 toward these expenses.

[ 12 ] Overall while I do not find that the Offer to Settle by the Applicant results in the cost consequences under Rule 18 being invoked, I can still consider the Offer under other factors of Rule 24.

OTHER FACTORS IN COSTS

[ 13 ] Under Rule 24 (11), the other factors to be considered in determining costs include the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour; the lawyer’s rates; the time properly spent on the case; expenses properly paid or payable; and any other relevant matter.

[ 14 ] These matters were important to both parties, in particular to the Applicant, as the Respondent had underpaid child support for some time. The matters were of moderate complexity largely due to the nature of the Respondent’s income and the sale of the Respondent’s dental practice.

[ 15 ] I do not agree with the submissions of Applicant’s counsel that the calling of the business accountant (Wayne Drew) unnecessarily extended the trial. This evidence was necessary to refute the Applicant’s allegation that the Respondent was hiding income. The calling of Donald McIntyre was necessitated by the Applicant’s faulty memory that no adjustments that had ever been made in child support.

[ 16 ] While the Respondent’s counsel submitted that the Applicant’s failure to prove the allegations of fraud and perjury (regarding his emotional and physical complaints and hiding of income) should adversely affect the costs awarded to the Applicant, there is no basis to do so in the circumstances of this case.

[ 17 ] However, I would note that the Applicant was not entirely blameless. She had contravened the previous Order which required her to maintain contributions to the children’s RESP accounts. She was not forthcoming with the Respondent about various relevant changes in the status of the children (proof of enrolment; when they stopped attending school; when they had graduated) nor with regard to providing receipts for the education and living expenses.

[ 18 ] As conceded by the Respondent’s counsel and having reviewed the Bill of Costs, I am satisfied that the time spent was as shown in the Bill of Costs and that the hourly rates charged were appropriate.

[ 19 ] Under Rule 24 (10) and as confirmed by the Court of Appeal in Islam v. Rahman 2007 ONCA 622, [2007] O.J. No. 3416, costs are to be decided at each step. To the extent that the Bill of Costs includes fees for Case and Settlement conferences, these cannot be allowed.

[ 20 ] Further, as is clear from Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3 rd ) 291 (C.A.): “...The fixing of costs does not begin or end with the calculation of hours times rates. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than the amount fixed by the actual costs incurred by the successful litigant.”

[ 21 ] Taking into consideration the applicable factors as set out in Rule 24 of the Family Law Rules and the principles enunciated by the Ontario Court of Appeal, as well as the particular circumstance of this case where the trial was necessary as the Respondent was not prepared to pay any amount toward child support and education expenses, the consequences of taking that position are that the Respondent must pay costs to the Applicant which are fixed in the amount of $30,000.00 inclusive of disbursements and HST.

ORDER

[ 22 ] For the above reasons, the Respondent shall pay costs to the Applicant in the sum of $30,000.00 inclusive of disbursements and HST.

ENFORCEMENT BY FRO

[ 23 ] In the covering letter from Applicant’s counsel, he requested an Order directing FRO to retain the Respondent’s passport until the arrears are paid in full or adequate security is provided.

[ 24 ] There is no jurisdiction for such an Order to be made nor is it properly in front of me by way of correspondence. The payment of the arrears is only to begin as of May 1, 2012 and until the Respondent defaults on that obligation, there is no basis to make any direction to FRO regarding enforcement of same.

MacPherson J.

Released: March 9, 2012