Court File and Parties

Court File No.: FC-08-029890-00
Date: 2012-05-17
Superior Court of Justice, Family Court Branch - Ontario

Re: Mathew Craig Zoern, Applicant

And: Tonia-Lynn Chahley, Respondent

Before: Mr. Justice J.C.S. Corkery

Counsel:
Charles Baker, Counsel, for the Applicant
Stephen J. Codas, Counsel, for the Respondent

Heard: 17 May 2012

Endorsement

[1] On October 27, 2011, this matter was concluded. In my endorsement I fixed the amount of outstanding arrears of child support (including section 7 expenses) at $33,000 and spousal support arrears at $4,000. Minutes of settlement were filed that addressed access by the applicant father and base child support going forward. I agreed to receive brief written submissions as to costs.

The respondent mother’s position

[2] The respondent mother submits that she was wholly successful on the motion and argues that the order obtained exceeded her offers to settle including the final offer to settle made the day before the hearing.

[3] The respondent argues that throughout this proceeding the applicant refused to pay support commensurate with his increased income. The respondent mother claims costs on a substantial recovery basis from the date of the parties’ Case Conference on 23 October 2009 in the amount of $45,000 inclusive of disbursements and tax. Alternatively, the respondent claims costs on a full recovery basis from 26 April 2011 in the amount of $22,036. The respondent submits that the costs incurred were fair and reasonable under the circumstances and the motion and supporting material were complicated by the actions of the applicant.

The applicant father’s position

[4] The applicant father acknowledges that costs are payable to the respondent, but submits that a reasonable amount would be no more than $5,000.

[5] The applicant submits that the only offer to settle outstanding at the time of the motion was made the day before, all previous offers having been withdrawn in that offer. It is his position that the mother did not do better than that offer.

[6] The applicant submits that no costs should be recoverable prior to April 1, 2011. He points out that this is consistent with the alternative bill of costs submitted by the applicant (which calculates costs from April 26, 2011). The applicant relies upon Rule 24(10), submitting that costs are to be decided at each stage of the proceeding.

[7] The respondent should be entitled to costs on only a partial recovery basis, subject to certain deductions, from April 1, 2011 to the date of the effective offer, October 26, 2011. If the court should find that the respondent did do better than the October 26, 2011 offer then the court should award costs on a substantial indemnity basis for only the one day following the offer, up to and including the hearing.

[8] The applicant also argues that the costs should be reduced for: issues argued before Justice Rogers on September 1, 2010, access issues and the allegation of inappropriate touching (which were not argued and which the applicant submits he was successful on), excessive time billed for correspondence between the respondent and her counsel, and for excessive costs for travel, research and factum preparation.

Disposition

[9] From the cost submissions, it is impossible to identify those costs are solely attributable to the issues before the court on the hearing. Indeed, some of the items included in the bill of costs for the period from October 23, 2009 to November 1, 2011 are obviously attributable to other attendances.

[10] Prior to this hearing, the last stage in the proceeding at which costs could be determined, was the appearance before Justice Rogers on September 1, 2010. That appearance was the subject of a separate costs endorsement on January 19, 2012. The October 23, 2009 bill of costs clearly includes items related to that hearing. As such, it cannot be relied upon to determine the costs of this hearing. Accordingly, I shall only consider the bill of costs submitted by the respondent for the period from April 26, 2010 to November 1, 2010.

[11] Although a number of offers to settle were exchanged in this matter the effective offer that I must consider in determining the scale of costs is that made on October 26, 2011, as it had withdrawn all of the respondent’s former offers.

[12] The only issues argued before me on October 27, 2011 concerned the determination of arrears, with respect to child support, section 7 expenses and spousal support. I fixed the amount of all arrears at $37,000. The October 26, 2011 offer proposed an amount of $30,000. Ongoing child support and access issues were dealt with in Minutes of Settlement filed by the parties.

[13] With respect to the issues before the court, the determination of the arrears of child support, section 7 expenses and spousal support, the respondent was successful in obtaining an order more favourable than the offer. On this issue, the respondent is entitled to its costs on a partial indemnity basis from April 26, 2010 to October 26, 2011 and on full recovery basis from October 27 to November 1, 2010.

[14] In determining the appropriate level of costs I have made no adjustment for the amount of communication between counsel and client, nor for the travel costs claimed. I have recognized costs attributable to other issues at 25%. The calculation of arrears was a straightforward issue and not complex.

[15] Cost payable by the applicant are fixed at $10,000. These costs are incidents of child and spousal support, as such a support deduction order will issue.

[16] The respondent served an offer to settle the issue of these costs upon the applicant. I opened the sealed envelope containing this offer only after completing the above reasons. The respondent offered to accept $37,500 in costs less the $2,500 plus HST ordered by Justice Rogers on January 19, 2012.

[17] The respondent is entitled to her costs of these submissions fixed at $800.00, also enforceable by a support deduction order.

“Corkery, J”

Mr. Justice J.C.S. Corkery

Date: August 23, 2012