ONTARIO
SUPERIOR COURT OF JUSTICE
WELLAND COURT FILE NO.: D14,925/07
DATE: 2013/03/07
BETWEEN:
CINDY LOU GIROUX
Margaret A. Hoy, for the Applicant
Applicant
- and -
GUIDO HERBERT MUELLER
Luigi DeLisio, for the Respondent
Respondent
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[1] The Applicant brought a Motion to Change a support order for two children, Kiera and Carly, made on June 25, 1998.
[2] The Motion was heard on November 13, 2012, with reasons for judgment being released on January 13, 2013.
[3] The Applicant was successful in that the child support was adjusted based on changes in the Respondent’s income, but the support was only retroactive for three years (not five years as requested) and there was no adjustment in support for the oldest child, as she was no longer “a child of the marriage” as of the date of effective notice for an adjustment to the child support. While the Applicant was successful in being granted some of the s. 7 expenses claimed, many were disallowed for lack of documentation and some were not allowed as they were not proper s. 7 expenses.
[4] The Applicant claims partial indemnity costs of $7,584.56 ($6,640.00 fees plus HST; $72.00 disbursements plus HST) There was no detailed Bill of Costs provided to substantiate what the hours were spent doing, but only a summary of time spent being 19 hours at $300.00 per hour for the solicitor, plus four hours travel and 10 hours of law clerk time.
[5] The Respondent’s position is that he should be awarded costs of $3,001.52 ($2,538.00 fees plus HST and disbursements of $125.00 plus HST) or in the alternative that there should be no order as to costs. This is based largely on the submission that the Applicant was not successful on the Motion, as rather than being awarded $105,000.00 as claimed by the Applicant, she was awarded $13,314.00. Further, it is submitted that the failure to obtain the relief requested was largely due to the Applicant’s failure to provide disclosure.
[6] With regard to the Respondent’s claim for costs, it is clear from the detailed Bill of Costs that the solicitor spent 14.1 hours on this matter, with an hourly rate of $300.00 per hour, which on a substantial indemnity rate would be $250.00 per hour and on a partial indemnity rate would be $180.00 per hour.
[7] In the circumstances of this case, I find that the Applicant was the successful party and is entitled to costs. The Respondent should have known that there would have been an adjustment to the child support as his income had increased and that at the very least, it would be adjusted retroactive three years from the date of effective notice. Until the Motion was heard, it was the Respondent’s position that the adjustment should only be to the date when the Motion was commenced. However, the Applicant’s failure to provide full and proper disclosure of the s. 7 expenses, made it impossible for the Respondent to make any reasonable attempt to resolve that issue and it was apparent that the claims being made were in the extreme.
[8] Accordingly, the Respondent shall pay costs to the Applicant in the amount of $2,500.00 inclusive of HST, to be paid within 60 days.
MacPherson J.
Released: March 7, 2013
WELLAND COURT FILE NO.: D14,925/97
DATE: 2013/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CINDY LOU GIROUX
Applicant
- and -
GUIDO HERBERT MUELLER
Respondent
COSTS ENDORSEMENT
MacPherson J.
Released: March 7, 2013