Court File and Parties

COURT FILE NO.: FS-10-3543-00
DATE: 2012-12-27
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Michelle Ann Babb, Applicant

AND:
Richard Omar Anderson, Respondent

BEFORE: Ricchetti, J.

COUNSEL:
R. Fernandes, Counsel, for the Applicant

Respondent, Self Represented

HEARD: In Chambers

COSTS ENDORSEMENT

[ 1 ] Both parties provided written costs submissions in accordance with the directions in my endorsement. I have considered the Respondent’s submissions despite the fact he filed no Answer in this matter.

THE POSITION OF THE PARTIES

[ 2 ] The Applicant seeks costs of $9,310.87 to be enforced by FRO. This includes costs for the Respondent’s long outstanding Notice of Motion (initially returnable on December 13, 2011), the case conference before Price, J. on November 1, 2012 (which costs were reserved to this motion) and the costs of the motion heard on November 27, 2012.

[ 3 ] The Applicant states that these costs were incurred in connection with a child support obligation and therefore payments from the Respondent should be enforceable by FRO.

[ 4 ] The Applicant correctly points out that the Respondent has never filed an Answer, never made full financial disclosure and has taken a “hard line” approach to this legal proceeding extending the time to deal with this, complicating the matter and increasing the costs unnecessarily.

[ 5 ] The Applicant also points to a number of offers to settle which culminated in an Offer to Settle of November 20, 2012 by the Applicant. I agree the Applicant did as well as this Offer to Settle when considered as a whole and, in any event, the Respondent was given the opportunity to accept any term of the Offer to Settle on a “piecemeal” basis and chose not to accept any terms.

[ 6 ] The Respondent’s written submissions seek to put much of the blame on his counsel for the steps taken and the failure to produce his complete financial information. The Respondent points to his inability to pay proper child support because of support obligations he has to another 7 year old child with another partner (with no evidence to support the impact this has on the Respondent financially). The Respondent also points to a number of other factors which are irrelevant to child support, such as the Mother’s alleged lack of financial disclosure and the fact the only issues to be decided were day care and life insurance. The Respondent suggests that the amount claimed for costs is excessive when considering that only these two items remained at issue when the motion was argued. What the Respondent fails to consider was what it took to get the Respondent to produce his financial documentation and to properly put this matter before the court to deal with the outstanding issues.

[ 7 ] It is important to remember that the parties find themselves in the position they are in because the Respondent failed to take any steps to respond to the Application and a final order was issued by Justice Lemon on March 17, 2011. Then the Respondent sought to set aside the final order. Negotiations ensued. Eventually, the matter came back before this court, this time with somewhat more financial information regarding the Respondent – but still not complete financial information and a Respondent who refused to pay day care (an issue finally resolved in the Applicant's favour).

[ 8 ] Parts of the motion were resolved on consent. This included resolving retroactive child support which the parties agreed the Respondent had overpaid certain amounts for child support. However, this is not to detract from the fact the amounts in paragraphs 1, 2 and 3 of the Consent could only be properly calculated by the Applicant and resolved when the Respondent finally produced sufficient financial information. The Respondent has no one but himself to blame for the increased costs.

[ 9 ] The Applicant was successful on parts of the motion. However, her Offer to Settle was generally more generous than what I ordered on day care expenses (the Applicant was prepared to do a 50/50 payment but was awarded a 2/3: 1/3 in the Applicant’s favour).

[ 10 ] The Applicant was not successful on seeking Life Insurance as security for child support payments given the Respondent’s history of making payments, even though the Consent suggests he was overpaying.

THE ANALYSIS

[ 11 ] What is reasonable in the circumstances?

[ 12 ] The Mother should be entitled to costs. This proceeding was necessitated by the Respondent’s attitude to initially ignore the legal proceeding, then moving to set aside the final order, then taking a “hard line” approach even when unreasonable and then failing to make the full and timely financial disclosure.

[ 13 ] The issues in this matter were not complex or difficult but were made so by the Respondent. The Respondent delayed the proper dealing of the issues in a timely and efficient manner. This was a matter of importance for the Applicant.

[ 14 ] Taking into account the Applicant’s Offer to Settle, the success by the Respondent to some extent, and the amount claimed by the Applicant, the Respondent shall pay to the Applicant the sum of $8,100 (all inclusive) for costs. This amount shall be paid at the rate of $225 per month on the first of every month commencing January 1, 2013 until fully paid. There shall be no interest if the amounts are paid on time (as I have included this in the total amount that is to be paid over time). If there are any arrears, the arrears shall bear interest at the rate of 5% from the date of payment until paid.

[ 15 ] I am satisfied that this costs order was made in connection with a claim for child support and should be enforced by FRO in the same manner as a support obligation of the Respondent.

Ricchetti, J.

Date: December 27, 2012