BARRIE COURT FILE NO.: FC-99-1347-0003

DATE: 20121106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pamela Anne Harvey, Applicant

AND:

John Murray Harvey, Respondent

BEFORE: THE HON. MADAM JUSTICE R.A. WILDMAN

COUNSEL: C. Severn, Counsel for the Applicant

John Murray Harvey, Self-represented

HEARD: By written submissions

COSTS ENDORSEMENT

[ 1 ] This endorsement relates to two things: a 14B motion by Ms. Harvey requesting corrections to my original decision of September 25, 2012 and requests by both parties for costs arising from the September 25 decision.

THE 14B MOTIONS

[ 2 ] On behalf of Ms. Harvey, Mr. Severn submits there are three errors in the original decision that need to be corrected. Mr. Harvey raises a fourth.

Paragraph 62

[ 3 ] Both parties agree that there is a typographical error in paragraph 62. I thank them for bringing this to my attention.

[ 4 ] On consent, an order will issue correcting the date to February 2013 in the second subparagraph, so that it will now read:

By February 2013, she should provide proof of enrolment for the winter term, and marks for the fall 2012.

Paragraph 18(f)

[ 5 ] I am afraid I am having trouble understanding Mr. Severn’s submission. He says:

The tutor doctor expense for John for 2010 was $2060/2=1030. Therefore, Mr. Harvey’s proportional expense of this total would be 58% of $2,060 or $1194.80. It would appear that the ½ share has been used to calculate the proportional total and not the full amount of tutor doctor. Requesting the proportional total be used i.e. $2060 x 58%.

[ 6 ] As set out in Mr. Severn’s opening line of this submission, my understanding is that the expense for John was closer to $1030 [1] , not $2060. I had originally apportioned the total number of hours with the Tutor Doctor between John and Leanna. I allowed 45 hours at $25 per hour [2] for John, which yielded a total of $1125. The endorsement of April 5, 2012, set the allowable expense for the Tutor Doctor for John for 2010 at $1125, “to be divided prorata by the parents on 2009 income”. According to the consent of the parties filed that day, Mr. Harvey’s 2009 income was $45,000 and Ms. Harvey’s was $32,816. Mr. Harvey’s income represented 57.8% of the total, which I rounded off at 58%. 58% of $1,125 is $652.50, which I rounded off at $650 and ordered that as Mr. Harvey’s share of the 2010 tutoring expense for John.

[ 7 ] If Mr. Severn still understands that the starting number for the tutoring expense for John is $2060 rather than $1,125, he may arrange a time for a conference call between him, me and Mr. Harvey through the trial coordinator so that he can explain the source of the error to me more clearly. However, I remind both parties that I have made my ruling, and I am only open to entertaining clarification or corrections regarding the math, not different conclusions regarding the appropriateness of the expenses.

Paragraph 77

[ 8 ] I agree with Mr. Severn’s submission, and thank him for bringing this to my attention. If John starts university in September of 2013, he will finish fourth year in April 2017 not April 2016. This paragraph should be amended accordingly.

Mr. Harvey’s Request

[ 9 ] Unfortunately, I did not have the draft order given to me, so it was difficult to follow most of Mr. Harvey’s submission. I also don’t have any response to the requests from Mr. Severn, so I don’t know whether or not he made the changes requested by Mr. Harvey. I will assume he did but, if not, Mr. Severn should arrange for a conference to be held with the court clerk, pursuant to Rule 25(6), to try to narrow or resolve the differences, so that the parties can agree about the wording of the order to be issued. If they cannot sort it out, the court clerk will refer the matter to me.

[ 10 ] Regarding paragraph 75, I am not prepared to make the change requested by Mr. Harvey, which would change support commencing January 1, 2013. We agreed that there could be no adjustments to the support until the prior year’s income tax return and notice of assessment are ready. This means that support will continue to be based on the 2011 income until the 2012 Income Tax return is filed and the Notice of Assessment received, in approximately June of 2013. At that time, support for the following year can be adjusted based on the 2012 Line 150 income, as contemplated by paragraph 80 of my September 25 decision.

COSTS

[ 11 ] Both parties are requesting costs for this motion to change. Ms. Harvey requests $5,364.33, which would appear to be full recovery costs for the three days the hearing proceeded before me and the conference before Justice Eberhard, costs of which were also reserved to me. Mr. Harvey is requesting $7,625 for “125.00 copies and faxes and the amount based on an average week’s pay for court appearances and filing of papers”. There is no breakdown of how the $7,625 figure was calculated.

[ 12 ] In paragraph 86 of my September 25 decision, I referred the parties to Rules 18 and 24, and the principles relating to costs. A successful party is presumed entitled to costs. Anyone who does as well or better than a Rule 18 offer can get full recovery costs from the date of the offer. Reasonableness is a recurring theme in deciding costs. Even if Rule 18 doesn’t apply, the court may consider offers in assessing reasonableness. If success is divided, the court may apportion costs accordingly.

[ 13 ] I find that neither party did as well as or better than his or her offer. Ms. Harvey wanted Mr. Harvey’s income to be fixed at $60,000 from January 1, 2010 forward. She wanted an order that he would pay child support for all three children until January 2012, and John and Leanna thereafter. She wanted him to pay $29,000 in arrears up to December 31, 2011. Finally, she wanted him to pay 50% of various section 7 expenses, including a maximum of $2,500 per year for Jessica, plus various other expenses for Leanna and John including tutoring, post-secondary costs (including tuition not covered by OSAP, student fees, school books, school supplies, and bus fare), medical expenses, prescription drugs, and eye glasses.

[ 14 ] Mr. Harvey’s offer is difficult to understand but I believe he was offering to pay support for two children from 2011 forward on an income of $35,000. Support for Leanna would end May 2013 and for John it would end May 2015 (if he was in “college” but not “trade school”). He wanted arrears adjusted by the court according to the disclosure (but didn’t say the amount he was offering as a settlement). He wanted costs for his time lost from work (again, with no amount). He wanted extraordinary expenses to be discussed by both parties as to whether they are necessary or affordable by both.

[ 15 ] The various terms of the offers were not severable. This means that a party would have to have done as well or better than all of the terms of his or her offer to invoke the cost entitlement of Rule 18(14). As neither party did so, the provisions of Rule 18 about full recovery costs do not apply. Neither party would be entitled to full recovery of his or her costs.

[ 16 ] Ms. Harvey’s offer is a reflection of her unreasonable approach to this litigation. Although she was successful in receiving an order for some support, her requests regarding Mr. Harvey’s income, and the extensive s. 7 expenses she pursued were so unreasonable and extreme that I find she has disentitled herself from any order of costs. The amount of time spent litigating this case was so excessive, and the failure to address the critical issue of Mr. Harvey’s ability to pay was so blatant and persistent, that it should not attract any cost reimbursement. No party should be encouraged to litigate in such an unrealistic and aggressive manner.

[ 17 ] However, I also find that Mr. Harvey has disentitled himself from claiming costs. It is clear that this motion had to proceed in order for Ms. Harvey to get an enforceable order settling the past and ongoing child support and s. 7 expenses. Although Mr. Harvey was not as unreasonable as Ms. Harvey, he could have put himself in a position to receive costs if he had served a reasonable offer to settle this matter without the need for a three-day hearing. His offer to base his support on an income of $37,000 was very close to what was ordered, and I am taking that into account. However, his offer to “adjust arrears accordingly” was not capable of being accepted, as it is completely unclear about what it means. Similarly, his suggestion that extraordinary expenses be discussed and agreed between the parties was unrealistic, given the level of animosity between Mr. and Ms. Harvey.

[ 18 ] I have considered the contents of both offers and the other factors set out in Rule 24(11), particularly the issues of reasonableness and the amount of time spent arguing this case, which far exceeded the amount of time originally booked for this motion or a reasonable amount of time in relation to the issues in dispute, given the incomes of the parties. Both parties are responsible for the need to have a court conduct a hearing to resolve the issues between them. I find that success was divided and neither party has satisfied me that he or she has established an entitlement to costs from the other. I am exercising my discretion regarding costs by making an order that each party shall bear his or her own costs in this matter.

[ 19 ] Order to go accordingly.

WILDMAN J.

Date: November 6, 2012

[1] My number was actually $1125, as will be explained below.

[2] I had found that $25 was a reasonable hourly cost to try for tutoring, given the limited income of the parents.