COURT FILE NO.: F1855/06

DATE: December 13, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Anthony Kelder, Applicant (Responding Party)

AND:

Debra Hartman, Respondent (Moving Party)

BEFORE: TEMPLETON J.

COUNSEL:
C. Vitsentzatos, counsel for the Applicant
C. Murphy, counsel for the Respondent

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[ 1 ] This matter was heard on May 11, 2012. A decision was rendered on June 26, 2012. Submissions from the Respondent with respect to costs were received on or about July 16, 2012. The Applicant made submissions on July 31, 2012. Reply submissions were not received from the Respondent until December 4, 2012. Apparently reply submissions were not forthcoming prior to this time because counsel had anticipated an order. Unfortunately, the Court was unaware that the Respondent’s right of reply had been waived. That said, the Court now has all submission in place.

[ 2 ] Both parties claim that costs are payable by the other on the basis of his/her success.

[ 3 ] The parties started living together in September 2003. They separated in November 2006. Their daughter is now 7 years of age.

[ 4 ] In the motion, Ms. Hartman requested that the Court impute income to Mr. Kelder and order him to pay child support retroactive to June 2008. Mr. Kelder opposed the motion.

[ 5 ] In my reasons for the Order granted, I found that: (a) I was not satisfied that a fair standard of support had been reached for the child; (b) I was not satisfied that Mr. Kelder had been intentionally underemployed; (c) Mr. Kelder had not generated the income alluded to by Ms. Hartman; (d) Mr. Kelder is accountable for the compensation he received for past income loss in 2009; and (e) Mr. Kelder is liable for ongoing child support.

[ 6 ] In my view, the findings of fact outlined above clearly reveal that both parties were successful in advancing at least some factors in support of their respective positions.

[ 7 ] That said, it is equally clear that Ms. Hartman was ultimately successful in her pursuit of child support excluding any consideration of disability benefits received for the benefit of the child. The decision of the Ontario Court of Appeal in Sipos v. Sipos , [2007] ONCA 126 made it clear that the CPP child benefit could not be used to reduce an obligation to pay support for the child.

[ 8 ] In the circumstances of this case, the award of costs to Ms. Hartman on a full indemnification basis is not appropriate. The issues were not complex or difficult. Neither party acted unreasonably. Ms. Hartman was substantially successful on this Motion.

[ 9 ] Costs are therefore fixed at $1,200 payable by Mr. Kelder to Ms. Hartman, which costs are enforceable as support given the fact that the only issue concerned child support.

“Justice Lynda Templeton”

Justice Lynda Templeton

Date: December 13, 2012