SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-2011

DATE: 2013/04/17

RE: HEATHER TREMBLAY, Applicant

AND:

RICHARD CASHMORE, Respondent

BEFORE: Turnbull, J.

COUNSEL:
Robert MacLeod, Counsel, for the Applicant

Keith Simpson, Counsel, for the Respondent

costs ENDORSEMENT

[1] The applicant brought a motion for child support, payment of child support arrears and ancillary remedies. The respondent contested the motion, questioned the applicant and ultimately settled the action after a Settlement Conference was held before Lafreniere J.

[2] Counsel have provided written submissions to the court and asked the court to assess the costs of the matter and to determine which party is entitled to his/her costs.

Overview of the Facts:

[3] The parties separated in October 1996. They had two children of their marriage who presently reside with the applicant. It appears from the materials before the court that the children have little or no contact with the respondent, their father, and he alleges that the applicant has alienated the children from him. In his submissions, the respondent contended that the applicant was instrumental in changing the name of the parties’ two children to that of her new husband.

[4] The parties signed a separation agreement dated July 16, 1997 that which was confirmed by a consent order dated April 15, 2002 setting out the respondent’s child support obligations. He apparently paid those child support payments regularly and without failure.

[5] After signing that separation agreement the respondent subsequently remarried and has had two additional children. He is obliged to support four children. Thus, his position was that the loss of any effective contact with his sons from his marriage with the applicant has had a significant adverse emotional impact upon him and the financial implications of his global support obligations is of significant importance to the respondent.

[6] In August 2010, the respondent had commenced his own motion to change in Newmarket after the parties’ eldest child, Benjamin, left the applicant’s home. In due course, Mr. MacLeod was retained as counsel for the applicant in the Newmarket motion. On November 1, 2010, the respondent, prior to withdrawing his motion for variation of child support emailed Mr. MacLeod asking “...are we able to put this matter behind us now and move on or will you be starting a new motion shortly in Simcoe?” On November 1, 2010 Mr. MacLeod responded by email advising that he had no instructions for any further action.

[7] The respondent withdrew his application, without seeking costs against the applicant.

[8] Within two months of the Newmarket matter being settled on consent, the applicant then instituted this motion to change in Simcoe.

[9] The applicant prepared her motion to change as a self-represented party. She subsequently retained Mr. MacLeod who attended at the Case Conference on May 25, 2011. However, thereafter she continued in a self-represented capacity and Mr. MacLeod did not become involved again until October 18, 2012. Thus, the applicant was largely self-represented throughout these proceedings. The respondent, in contrast, was represented by counsel and has incurred significant legal costs as a result thereof.

[10] The respondent questioned the applicant with respect to the issues in this litigation. The respondent alleged that the applicant initially failed to answer undertakings given at her questioning and that reluctance to provide the disclosure allegedly interfered with the respondent’s ability to negotiate a proper settlement.

[11] The matter came before the court for a Settlement Conference on July 26, 2012 but could not proceed because the applicant failed to comply with the Rules in that she did not:

a. Prepare an updated sworn financial statement, and

b. Attempted to deliver her Settlement Conference brief at the commencement of the conference on July 26.

[12] Mr. Justice Gordon adjourned the Settlement Conference to October 15, 2012 and reserved the costs of the failed conference on July 26, 2012 to the judge on the return date on the final hearing.

[13] The Settlement Conference continued before Madam Justice Lafreniere on October 15, 2012 (where the applicant continued to be self-represented). No resolution was obtained but a timetable was ordered for the parties to serve further affidavits and the matter was adjourned to assignment court on November 14, 2012 to pick a trial date.

[14] In his helpful submissions, Mr. Simpson provided a summary of the offers to settle exchanged by the parties in these proceedings. Ultimately, the respondent made an Offer to Settle dated October 22, 2012 which was accepted by the applicant on October 25, 2012. The offer provided that each party was to bear his/her own costs if the offer was accepted on or before October 23, 2012 and otherwise the costs were to be determined by the court. In the circumstances, the parties asked the court to determine the costs.

[15] I have reviewed the respondent’s offer dated February 9, 2011, the applicant’s offer of May 30, 2011, the respondent’s offer of June 14, 2011, the applicant’s offer of February 21, 2012, the respondent’s offer of April 24, 2012, the respondent’s offer (#1) of October 15, 2012, the respondent’s offer (#2) of October 15, 2012, the applicant’s offer of October 18, 2012, and the respondent’s offer of October 22, 2012.

[16] In my view, this action has been settled in favour of the applicant. This was a simple child support variation case. On several occasions the applicant offered to settle the matter on terms which were more advantageous to the respondent than the final settlement agreed upon.

[17] The order in place when the applicant commenced this variation proceeding required the respondent to pay $1,000 per month for the two children.

[18] The motion to change commenced in January 2011 sought an increase to $1,287 monthly based on the respondent’s known income of $90,240. She also sought the appropriate contribution towards the boys’ section 7 expenses. She sought a commencement date for the new support amount of February 1, 2011. At the time that she filed this motion material she was self-represented. In essence, the position of the respondent was that he should not have to pay child support in accordance with the Child Support Guidelines. In the end he was unsuccessful in that respect.

[19] The applicant’s February 24, 2011 offer provided for the respondent to pay

a. $1,287 per month child support commencing January 1, 2011;

b. $300 per month for section 7 expenses;

c. $2,500 for lump sum arrears.

[20] Her Offer to Settle of May 30, 2011 provided for the respondent to pay

a. $1,306 monthly child support commencing January 1, 2011;

b. No section 7 expenses would be required from the respondent except post-secondary expenses which would be addressed when needed;

c. $2,500 for lump sum arrears.

[21] This latter offer was rejected by the respondent on June 16, 2011.

[22] On February 21, 2012 the applicant’s further Offer to Settle provided for the respondent to pay

a. $1,465 monthly child support commencing February 1, 2011;

b. A declaration that there were no arrears of support as of January 31, 2011;

c. A declaration that there were no section 7 expenses.

[23] Immediately after the Settlement Conference before Justice Lafreniere on October 15, 2012, the applicant consulted counsel. Her offer of October 18, 2012 was prepared and served as quickly as possible.

[24] On October 18, 2012, the applicant made a Rule 18, Offer to Settle, which provided

a. $1,298 monthly child support commencing January 2012;

b. Arrears of child support fixed at $10,770;

c. No section 7 contributions.

[25] I find that this October 18, 2012 offer was essentially reworded by the respondent and incorporated into his offer dated October 22, 2012 which was accepted by the applicant.

Costs:

[26] Under Rule 24 of the Family Law Rules, certain factors are articulated which the court must consider in setting the amount of costs. They include the importance, complexity or difficulty of the issues. I do not consider the matters in dispute in this case particularly complex. The respondent knew, at all material times, his annual income and was able to provide the appropriate information to the applicant and make the necessary adjustments in accordance with the Child Support Guidelines.

[27] The court is to consider the reasonableness of each party’s behaviour in the case. While the respondent may have been surprised by the applicant’s January 2011 motion, having withdrawn his motion in Newmarket shortly before that, the respondent could have protected himself by taking the appropriate legal action. He chose not to do so and the applicant clearly was entitled to seek the child support arrears and ongoing child support in accordance with the respondent’s income. As things turned out, she was successful and the arrears for 2009 and 2010 constituted part of the final resolution.

[28] Mr. MacLeod has billed his client at the rate of $300 per hour. Bearing the mind the fact that he has been practising almost exclusively in the area of family law for approximately 20 years, I do not find that rate to be unreasonable or beyond the reasonable anticipation of the respondent. I think that’s particularly true when one considers that the respondent’s counsel bills at an hourly rate of $400 per hour, which for a lawyer with his experience, is not unreasonable.

[29] I have reviewed the time claimed by Mr. MacLeod on the case and I do not find his time to be unreasonable nor the services provided unreasonable.

[30] As noted above I have considered the offers to settle in this matter and the conduct of the parties related to the exchange of those offers.

[31] Mr. MacLeod was retained from February 10, 2011 through June 1, 2011 and again from October 16 to this time.

[32] I find the fees, disbursements and H.S.T. charged by Mr. MacLeod to the time of examinations in the amount of $3,344.86 to be fair and reasonable.

[33] I find the fees of Mr. MacLeod for preparing a final offer and resolving the matter including costs submissions, preparing the final order and finalizing the file of $1,500 plus H.S.T. of $195 to be fair and reasonable.

[34] The disbursements incurred by the applicant to proceed with this claim include the cost of a process server at the rate of $124 and obtaining copies of the examination transcripts for $331.33. I find those disbursements to be appropriate.

[35] The applicant has claimed time for her days off work which she calculates at 15 days times 6.5 hours. I can understand why she might have had to take time off work with respect to the Case Conference, the questioning and the Settlement Conference in these proceedings. I don’t think she should be compensated for her day off work or the failure to have the appropriate documents prepared for Justice Gordon at the first Settlement Conference. No explanation has been given to the court with respect to why she had to take 15 days off work to proceed with this litigation. In the circumstances I am prepared to allow her $300 for time off work.

Conclusion:

[36] The respondent shall pay to the applicant her costs of this motion on a substantial indemnity basis in the amount of $5,339.86 including H.S.T. and assessable disbursements as allowed above.

[37] Substantial indemnity costs are appropriate because the respondent ultimately agreed to pay retroactive and ongoing child support in accordance with the Child Support Guidelines. If he had simply agreed to do so at the outset, this litigation would not have been necessary.

Turnbull, J.

Date: April 17, 2013