SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS5767/11
DATE: 20120716

RE: JAYNE ELIZABETH MURPHY, Applicant

AND:

JOHN PATRICK MURPHY, Respondent

BEFORE: Turnbull J.

COUNSEL:
Robert MacLeod, counsel for the Applicant

R. Keith Simpson, counsel for the Respondent

ENDORSEMENT

[ 1 ] The respondent brought a motion seeking guideline child support based upon “a hybrid” calculation with respect to hybrid child support.

[ 2 ] Two of the children of the marriage live with the respondent and one child spends approximately fifty percent of his time with each of his parents. In this motion, the respondent also sought an order that the applicant pay to him interim disbursements in costs in the sum of $6,500 without prejudice to his right to bring a motion for interim disbursements on costs.

[ 3 ] In the end, for written reasons rendered, the respondent was successful with respect to the claim for child support. He was unsuccessful with respect to his motion for the prepayment of interim disbursements and costs. Hence, to a certain degree success was divided in the motion.

[ 4 ] The record shows that the respondent brought this notice of motion in December 2011 and it was initially returnable Friday, January 13, 2012. However, after waiting until approximately noon hour, the presiding judge indicated that day that he would not reach the matter and it was therefore adjourned to and argued March 9, 2012, before me. The decision was reserved and rendered March 20, 2012.

[ 5 ] The respondent seeks costs fixed in the sum of $6,500 plus disbursements of $381.40 plus H.S.T. I find that because the respondent was substantially successful in receiving a significant amount of retroactive set-off of guideline child support, the respondent should be awarded his costs of the motion. In assessing the amount of costs, the court must consider the factors enumerated in Rule 24 (11). The matter was of obvious importance to the respondent. His income was significantly less than that of the applicant and he had the “majority” of the children living with him most of the time. I have considered the reasonableness of each party’s behaviour. The applicant argued that in fact that Mr. Murphy was making money from the ice cream business. Her counsel noted that he has not provided the cash register tapes, nor made himself available for cross-examination on his affidavit. On the other hand, it clearly was unreasonable for the applicant to not pay any guideline child support in the absence of a court order bearing in mind the apparent discrepancy in their incomes and the greater burden of childcare being borne by the respondent.

[ 6 ] I have reviewed the bill of costs submitted by Mr. Simpson, counsel for the respondent. I have no difficulty in approving his hourly billing rate of $400 per hour bearing in mind his lengthy time at the bar. I have reviewed the dockets for work undertaken on this motion and find that the work is appropriate and the time expended is also appropriate.

[ 7 ] In the circumstances, the respondent should be granted his costs on a partial indemnity basis which are claimed in the sum of $5,146.47 inclusive of fees, disbursements and H.S.T. However, those costs should be reduced for the following factors:

(a) Approximately 25 percent of the time was spent arguing the interim disbursements issues on which the respondent was unsuccessful;

(b) At paragraph 18 of the endorsement dated March 20, 2012, the court accepted the assertion of Mr. Murphy that he was unable to refinance his business and was attempting to get out of the ice cream business. On March 16, 2012, just nine days after the matter was argued, he registered a $97,000 mortgage on the property where the business is located. In my view, Mr. Murphy had a duty to the court to correct his evidence regarding his intentions and ability to refinance the business. He also had duty to inform his counsel of the pending refinancing. I find it difficult to accept he did not have these arrangements in place on the date of the argument of the motion. I must say that it gives me reason to believe that perhaps the business is more profitable than he might otherwise have indicated.

[ 8 ] In the circumstances, the partial indemnity costs should be reduced by fifty percent and I award Mr. Murphy his costs, disbursements and H.S.T. in the sum of $2,500 all inclusive.

Turnbull J.

Date: July 16, 2012