SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 57-03 (Walkerton)
DATE: 20130418

RE: CINDY ELIZABETH JAHN-CARTWRIGHT

Applicant

- and -

JOHN SCOTT CARTWRIGHT

Respondent

BEFORE: KRUZICK J.

COUNSEL:
Philip J. Smith
for the Applicant

Glenna G. McClelland
for the Respondent

ENDORSEMENT

overview

[1] The claim for costs by the applicant, Cindy Elizabeth Jahn-Cartwright, arises from a Motion to Change the December 6, 2007 final order of O’Connell J. The Motion to Change was brought by the respondent, John Scott Cartwright, in July 2009. He sought to terminate spousal and child support to the applicant. Pursuant to Minutes of Settlement signed March 21, 2012, a subsequent final order was made by Thompson J. The matter was referred to me given my involvement on March 31, 2010, in the application to stay the order of Price J. made February 8, 2010.

[2] The applicant now seeks costs of $42,969.69 inclusive of taxes against the respondent, Mr. Cartwright. This claim includes:

(a) $9,038 in costs as ordered against the respondent by Price J. (August 3, 2012);

(b) $24,360.26 for the bill of costs (May 29, 2012);

(c) $1,000 in the cause (order of March 31, 2010); and,

(d) $8,571.43 as relating to income tax penalties incurred when the applicant cashed registered savings.

[3] The respondent argues each party should bear their own costs.

[4] The genesis of the matter which gives rise to the costs issue was a Motion to Change brought by Mr. Cartwright in July 20009. He sought to terminate child support and spousal support to the applicant.

[5] The applicant, Ms. Jahn-Cartwright, defended the Motion to Change and by cross-motion sought pro-rata contribution to the child’s post-secondary expenses, child support and spousal support. All issues arising from the motion to change, except for costs, are settled.

background facts

[6] The parties began living together in early 1985. They married April 15, 1988, and separated January 29, 2001. This was a relationship of some sixteen years.

[7] The parties have three children. Only one child, Devon, born June 28, 1980, is now the subject of the motions. He is the youngest child. He was in post-secondary school and wanted to go to post secondary education to be a teacher.

[8] In September 2002 the parties entered into a Separation Agreement which granted the applicant sole custody of the children and the respondent liberal access. In June 2003 the parties signed an Amendment to Separation Agreement.

[9] Pursuant to the agreement, Mr. Cartwright was to pay child and spousal support and make a contribution to the child’s special and extraordinary expenses.

[10] Following the signing of the Separation Agreement, the appellant commenced proceedings to change support.

[11] On December 6, 2007, pursuant to an order of O’Connell J. child support was increased and the respondent was ordered to pay section 7 expenses and arrears of support. He also ordered child support to be adjusted each year, retroactive to January 1, 2007, based on Mr. Cartwright’s income for that year.

[12] The Family Responsibility Office (“FRO”) was unable to automatically process the amended support payments because the amount of support was not fixed by the order. The respondent refused to cooperate with the applicant to implement and collect the increase. The applicant brought a 14B motion.

timeline of current proceeding

[13] In paragraphs 13 to 22 of the costs submission of the applicant, dated May 29, 2012, the applicant sets out the history of this matter from June 30, 2009, when the respondent sought to terminate his support obligations. The matter was set on the trial list for March 2012. However, prior to being called the parties settled pursuant to the Minutes of Settlement referred to in paragraph 1 and made into an order by Thomson J.

[14] In the time period from January 2011 to February 2012 each party made six offers to settle. These offers form part of the cost submissions.

[15] In February 2010 Price J. made an order which was favourable to the applicant. When the respondent appealed that order, the applicant agreed to set it aside. In the end the parties settled and the March 2012 settlement to a large degree reflects the earlier order of Price J.

[16] In making a costs order I bear in mind s.131 of the Courts of Justice Act and the provisions of the Family Law Rules, specifically Rule 24(5). These provisions set out factors which I considered. The factors include the party’s behaviour in relation to the issues from the time they arose; any offer the party made; the reasonableness of any such offer; and, any offer the party withdrew or failed to accept.

[17] I reviewed the bills of costs as submitted. In the case of the applicant there was a period when she was not represented.

[18] In my review I consider the offers exchanged, the result as settled and the conduct of the parties. The applicant argues the respondent was unreasonable throughout the process. The respondent argues his position was reasonable because he did not know the child’s status and dependency.

[19] The respondent did not believe the applicant and also maintains the demands made by the applicant were excessive. Her position however was not unreasonable.

[20] In the end, the respondent relies on the fact that the parties settled and that success was divided so that it would be appropriate for each party to bear his/her own costs.

[21] I cannot consider the applicant’s claim for her loss of $8,571.43 relating to the income tax penalty which she paid when she redeemed registered savings. While she may have or have had a remedy to make that claim, it is not appropriate to deal with that issue here under the claim for costs.

conclusion

[22] I reviewed the bills of costs of each party and the submissions made on their behalf. Bearing in mind the result and the bills of costs and the above-mentioned applicable factors, costs shall be to the applicant payable by the respondent and fixed in the amount of $17,000 inclusive of disbursements and tax and payable within 30 days.

KRUZICK J.

DATE: April 18, 2013