ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-2172-1
DATE: 11-03-2013
BETWEEN:
Louise Lalonde
Applicant
– and –
Claude Potier
Respondent
Julie Audet, for the Applicant
Michèle Labrosse, for the Respondent
HEARD: by written submissions
Decision on costs
beaudoin j.
Introduction.
[1] By way of motion to change, the Applicant sought an order fixing the child support payable by the Respondent for the two children of the marriage who were living in a hybrid parenting arrangement; one child ( Mathieu) living full-time with the mother and the other son (Daniel) residing alternate weeks with each parent. Ms Lalonde was seeking a retroactive award to June 1st, 2011.
[2] Although the parties have been able to resolve the child support issues between themselves, they were unable to agree on the appropriate approach to apply when Mathieu went to live full-time with his mother. Initially, the father accepted the Mother’s two-step approach to calculating support until June of 2011 when he obtained legal advice and took the position that he had over paid child support and for the next five months he made only one payment of $385.
[3] The mother was seeking $1,100 in child support and proposed an additional$100 monthly for section 7 expenses since there had been disputes about these in the past. The father was prepared to pay $833 per month and he sought a readjustment of child support back to June of 2010.
[4] I accepted the father’s argument that the hybrid set-off approach to calculating child support should be applied and ordered him to pay child support in the amount of $883 per month retroactively to June 2011. I also reduced the Applicant’s claim for special expenses from $662.74 to $520 and ordered Mr. Potier to pay his proportionate share ($312).
[5] J’ai conclu que l’intimé avait eu gain de cause. Il réclame une ordonnance de dépens au montant de $8,500. Il cite les fait qu’il a présenté deux offres de transaction et que globalement, les résultats de la motion sont meilleurs pour l’intimé que les offres de la requérante. Il cite les arrêts suivants : Biant c. Sagoo (2001) Carswell 3315 (C.S.J) et Osmar c. Osmar, 2008 8 F.L.R. (5e), vol. 8, p. 387 qui soulignent l’importance d’indemniser aussi complètement que possible la partie qui a gain de cause.
[6] Although I concluded that the Respondent was the successful party, the Applicant argues that the Respondent drove this matter down the litigation path due to his refusal to include in his settlement offers any compensation for the five month period where he paid the sum of $385. By the time Mr. Potier acknowledged any responsibility to pay arrears for those months, the Applicant claims she had incurred considerable legal fees and costs became a barrier to settlement. The Applicant notes that she tried to engage in a less expensive dispute resolution process but that the Respondent was not prepared to consider this option. Offers were exchanged, the parties were unable to agree and the parties proceeded to argue the motion before me.
[7] The Applicant notes that she was successful on the issue of retroactivity and that neither party obtained a result that a result that was more favourable than their offers. I note that Mr. Potier’s offer on arrears was close to the result obtained. Arrears were calculated $5,5654.46 and Mr. Potier’s offer was $5,204 whereas Ms. Lalonde’s offer was for $6,678.
[8] The Applicant argues that respondent’s refusal to engage in alternate resolution dispute options, his initial refusal to acknowledge any responsibility for arrears and the reasonableness of her final offer mitigate gains to an award of costs in favour of the Respondent.
[9] Nevertheless, the Applicant acknowledges that Mr. Potier’s offer was very close to what was ordered by the court and she submits that an appropriate award of costs, if one is to be made should be limited to $2,500.
Decision
[10] As I noted in my decision, where one parent has custody of one child and the parents share custody of another, the child support claim is considered a hybrid claim. The Child Support Guidelines do not provide a specific formula in these cases nor is there a decision at the appellate level as to how to address this issue. In that sense it was not unreasonable for the parties to seek direction from the court.
[11] Since the issues were relatively discrete, namely, which approach to use for the payment of child support, it was not unreasonable for the Respondent to seek to have that matter resolved by argument on a motion. While I am a strong proponent of mediation, I’m not satisfied that an alternative approach to dispute resolution would have been more economical or more appropriate in these circumstances.
[12] Having regard, to the factors set out in Rule 24, I cannot conclude that the father behaved in a completely unreasonable manner when he suspended the payment of child support for five months. By applying the hybrid set-of approach, he had overpaid support for the preceding year. Had I granted his request for a recalculation to June 2010, the outcome would have been even more favourable to the Respondent.
[13] There is an additional factor which weighs against the Applicant in this matter. Her initial materials and financial statement had been prepared without the input of her counsel on the motion. I concluded that the required analysis of comparable household incomes was handicapped by the Applicant’s ambiguous evidence about her living arrangements with Mr. Dufton and her attempts to minimize his financial contributions.
[14] The parties took an economical approach to the argument of the motion and the hourly rates and time spent by both parties were reasonable. Having regard to the fact that there is some conflict in the case law; it was reasonable for the Applicant to have brought her motion to change. The Respondent’s approach, which was on offer since July of 2012 was much closer to the result obtained. I see no reason to depart from the presumptive rule set out in Rule 24(1) but the conflicting arguments on the appropriate approach to be used must be taken into account and I order the Applicant to pay the Respondents costs which I fix in the amount of $5,000.
Mr. Justice Robert N. Beaudoin
Released: 11-03-2013
COURT FILE NO.: FC-11-2172-1
DATE: 11-03-2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Louise Lalonde
Applicant
– and –
Claude Potier
Respondent
REASONS FOR DECISION
Beaudoin J.
Released: 11-03-2013