Court File and Parties
Court File No.: 7413/09
Date: 2012-11-14
Superior Court of Justice - Ontario
Re: ROSS ARTHUR PEEL
Applicant
And: JANIS LYNN PEEL
Respondent
Before: JUSTICE KRUZICK
Counsel:
D. Kevin Haxell Laura E. Oliver
for the Applicant for the Respondent
C O S T S E N D O R S E M E N T
[ 1 ] Judgment in this matter was released on May 3, 2012. Counsel were not able to resolve the issue of costs and made submissions in writing.
[ 2 ] Ms. Peel, the respondent, seeks costs, including fees and disbursements, in the amount of $52,000. Mr. Peel, the applicant, in response to the costs claim takes the position that success was divided on the issues; however, concedes that given that the major issue was the determination of the applicant’s income, if a costs award is made the appropriate amount would be $25,000.
analysis
[ 3 ] At trial, the issues that had to be decided, as stated at paragraph 10 of my Reasons, were:
Spousal support, including the quantum of support and the claim for conversion of the periodic support to a lump sum.
Child support, including: quantum of child support; whether support for Jeffery should continue; and, the claim for arrears of s. 7 expenses.
[ 4 ] The general principles of costs are established by s. 131 of the Courts of Justice Act , R.S.O. 1990, c. C.43, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” In family law proceedings, the guiding principles are set out in Rule 24 of the Family Law Rules , O. Reg. 114/99. Generally, a successful party is entitled to costs, barring some unreasonable behavior that may disentitle the successful party.
[ 5 ] The issue of costs in family law matters was reviewed thoroughly by the Ontario Court of Appeal in the decision of Andrews v. Andrews , 1980 1913 (ON CA) , [1980] 32 O.R. (2d) 29 (S.C.J.). The matter before that Court was an appeal from an order for costs made in a divorce proceeding. The Court of Appeal referred to Rule 810, now by analogy Rule 24 . In allowing the appeal, Houlden J.A. delivering the judgment of the court at pages 35 and 36 stated, in part:
In exercising the discretion conferred by Rule 810, we believe the following factors will be relevant (the list is not intended to be exhaustive):
(a) the success of the parties: see Kalesky v. Kalesky (1974), 1974 792 (ON CA) , 5 O.R. (2d) 546. In matrimonial cases success is frequently divided; hence the success of the parties is not as important as in ordinary civil litigation;
(b) the conduct of the parties prior to the commencement of the litigation …;
(c) the conduct of the parties during litigation …;
(d) the income and assets of each party, the relative means of each party to bear his or her own costs, and the effect of the award on the ability of a party to meet the obligations imposed on him or her by the judgment: see Dill v. Dill (1972), 9 R.F.I. 119; Weir v. Weir, supra .
[ 6 ] Rule 24 has now enshrined these costs principles. I am also bound to consider the complexity of the issues, the lawyer’s hourly rate, the time properly spent, the disbursements, and any other relevant matter. Additionally, Rule 20(14) provides for offers to settle.
[ 7 ] The respondent was successful in her main argument that the relief, as sought by the applicant to reduce the support payable, be dismissed. The respondent was denied her claim to a conversion of periodic spousal support to a lump sum. I find no unreasonable behaviour on the part of the respondent in the conduct of this action so as to disentitle her to costs.
[ 8 ] The applicant, on the other hand, was unsuccessful in persuading me that the amount of child support should be reduced. I found his income had changed. He was successful, however, in arguing that he should only have to pay for one child during those periods of time when Jeffery was not in school and that child support for Jeffery, while he was at school and away from the respondent’s home, should be reduced. While the applicant was successful on the issue that support for Jeffery should not continue, the claim was not strenuously argued by the respondent.
[ 9 ] The applicant was also successful in defeating the respondent’s claim to convert periodic payments to a lump sum. The respondent was for the most part successful with her claim with respect to arrears of s. 7 expenses and recovered a substantial percentage of the s. 7 expenses that she claimed. She claimed $38,049.63 and was in the end awarded $34,484.96. I acknowledge that the award was offset by an award to the applicant for overpayment of child support.
[ 10 ] In his submissions, the applicant recognizes that the major issue at trial was whether or not support should be paid on the basis of the applicant’s line 150 income as he maintained a greater amount as maintained by the respondent. In the end, I determined that support should be paid on what the parties agreed in their separation agreement as the applicant’s income.
[ 11 ] Having regard to the factors set out above, I find the respondent was largely successful particularly on the major issue, being the applicant’s income.
conclusion
[ 12 ] In this case, the respondent had no alternative but to defend the claim made by the applicant. Otherwise, the status quo would have continued. The respondent’s financial circumstances are dire, as established at trial. She is not in a position to fund the litigation costs without significant contribution from the applicant. The applicant elected not to retain an expert to assist the court in the determination of his income other than his own accountant. He took this step to his own detriment and it prolonged the trial.
[ 13 ] I do bear in mind that the respondent was not entirely successful, as set out above. However, she is entitled to her costs close to what she actually incurred.
[ 14 ] Bearing in mind the result, the work done, the time sheet and the hourly rate of counsel, and the means of the parties, the respondent shall have her costs, inclusive of disbursements, fixed at $42,000.
KRUZICK J.
RELEASED: November 14, 2012