SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F484/09

DATE: February 21, 2013

RE: Lynette Sharon Williams, applicant

AND:

Bryan John Williams, respondent

BEFORE: MITROW J.

COUNSEL:
Wendy Trieu for the applicant

Bryan Williams in person

HEARD: written submissions filed by the applicant

ENDORSEMENT ON COSTS

[1] On January 11, 2013 I released the decision on motions brought by the parties (see Williams v. Williams, 2013 ONSC 220).

[2] The order provided as follows in relation to costs:

35(3) In relation to the costs of Mr. Williams’ motion for interim relief, and Ms. Williams’ motion, the parties shall forward written submissions on costs addressed care of the Family Court trial coordinator as follows:

a) Ms. Williams’ submissions – within two weeks of the date of this order;

b) Mr. Williams’ submissions – within two weeks thereafter; and

c) Ms. Williams’ reply submissions, if any – within one week thereafter.

[3] The applicant’s written costs submissions are dated January 25, 2013. The respondent’s written costs submissions, due February 8, 2013, were not received. Applicant’s counsel has provided a further brief submission in letter-form dated February 14, 2013, adding that no costs submissions were received from the respondent and that the applicant would not be providing reply submissions.

[4] The respondent’s motion to vary a final child support order dated June 15, 2011 on an interim basis was dismissed. The applicant, on her motion, was partially successful in obtaining an order staying the respondent’s motion to change on terms that he pay some of the outstanding costs orders made against him.

[5] The respondent’s lack of financial disclosure and his failure to come to court with “clean hands” was summarized at para. 26 of the reasons on the motions as follows:

26 Mr. Williams has failed to present a prima facie case on the motion that entitles him to an interim variation of child support. His financial disclosure is incomplete. His arbitrary assumption that income equates to 40 percent of gross income is disingenuous given his lack of production of any bills or invoices verifying his billings and expenses. His income tax disclosure is incomplete. He infects his motion for interim relief with all the traits of obfuscation due to financial non-disclosure that he engaged in during trial. Mr. Williams fails to account for, or even discuss, the income he earned during 2011 in addition to his T4 income. He provides no business financial statements, or even any preliminary summaries of billings and expenses with backup documents – this despite Nolan J.’s admonition in her reasons for judgment that Mr. Williams should have been aware of the need to produce “every scrap of paper that related to his business” (see para. 86). Mr. Williams has not come to court with “clean hands.”

[6] The applicant seeks costs of $4,459.49 (consisting of $3,432.50 for fees, $519.25 for disbursements and the balance for HST).

[7] The applicant was successful and presumptively is entitled to costs. In considering the factors in r. 24(11), the motions, although not complex, were important to the applicant. I find the respondent’s conduct in failing to provide proper financial disclosure to be unreasonable. The hourly rates for Mr. Eberlie ($475 – 1975 call) and Ms. Trieu ($225 – 2012 call) are reasonable, as are the disbursements. The total time spent by the lawyers (3.1 hours for Mr. Eberlie and 7.1 hours for Ms. Trieu) is also reasonable.

[8] Quite reasonably, the time spent included only .2 hours on each of two separate days when the motions were not reached.

[9] No offers to settle were served and therefore Rule 18 is not engaged. The amount claimed for costs appears to represent something close to full indemnity. The costs order should take into account that the applicant did not submit a Rule 18 offer to settle. In all family law cases it should be standard practice to serve offers (see for example Figueiredo v. Figueiredo, 2013 ONSC 310 and Karbelnik v. Berk, [2001] O.J. No. 1823 (Ont. S.C.J.)).

[10] The respondent shall pay to the applicant forthwith her costs of the motions fixed in the amount of $3,500 inclusive of HST and recoverable disbursements. This order shall constitute a “support order” as defined in s. 1(1), definition of “support order,” paragraph (g), of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 21, 2013