Superior Court of Justice - Ontario
COURT FILE NO.: FC-13-339
DATE: 2013/06/27
RE: Margaret Annette Cork, Applicant
AND
David William Cork, Respondent
BEFORE: Métivier J.
COUNSEL: H. Hunter Phillips, Counsel, for the Applicant
Pam MacEachern, Counsel, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[1] This matter dealt with temporary child and spousal support.
[2] On May 16, 2013, I ordered that the respondent husband pay to the wife $4,050 per month for child support and $14,991 per month for spousal support.
[3] Both these amounts were higher than the two previous offers made by the applicant wife (February 13, 2013 – child support of $3,746 and spousal support of $13,300 as of July 1, 2012; and March 25, 2013 – child support of $3,746 and spousal support of $13,300 but with a credit of $6,909 for a credit card debt).
[4] The respondent made no specific Offer to Settle the motion. He did provide a draft Interim Agreement in September of 2012 but this was not acceptable since it relied on averaging the husband’s income (a concept I rejected at the motion) and the spousal support was unacceptable as it was based on the lower end of the Spousal Support Advisory Guidelines range for the averaged income.
[5] The applicant seeks payment of $17,283 as full recovery costs.
[6] The respondent takes the position that each party should bear his or her own costs. The submission is that the fees claimed are excessive and, if granted, should be reduced to $5,000. No costs of $4,450 should be awarded for preparation and attendance at a case conference.
[7] Further, the respondent points out that the applicant’s fees will be tax deductible which will further reduce the amount for legal fees.
[8] The respondent submits through counsel that his conduct was not so unreasonable as to warrant full indemnity costs.
[9] He made two offers in July and August 2012 in the $10,000 range for spousal support and $3,299 in child support. These amounts were based on his 2011 tax return of $485,000. In September 2012, a draft Interim Agreement was prepared by his counsel.
[10] In addition, the respondent submits he was paying half of his net income to the applicant until September 2012. At that point, he reduced the amount by deducting for certain expenses he determined unilaterally. However, he repeatedly asked for a credit for amounts paid by way of an agreement which would enable him to claim tax deductibility. This was not unreasonable.
[11] Counsel also submits Mr. Cork acted reasonably, especially in the face of Ms. Cork’s delay, which included cancelling mediation, submitting her financial statements some four months after Mr. Cork had done so and delaying the start of the valuation of his retirement program from December 21, 2012, when he provided his expert’s report, until the end of April 2013.
[12] I do find unreasonable the position taken on the averaging of his income.
[13] I find Ms. Cork presumptively entitled to her costs.
[14] I have concluded that she is not entitled to substantial indemnity costs.
[15] I agree that the costs for this motion should not include the direct cost being claimed for the case conference. The Notice of Motion was drafted on February 25, 2013 but a case conference took place on March 8, 2013. Much of the preparation related to that attendance would have been used at the motion also. However, there should be a modest reduction of $1,000 for that event.
[16] I agree that the wife’s entitlement to tax deductibility is a valid consideration, in assessing costs in a fair and reasonable manner, pursuant to the Rules and the Courts of Justice Act, R.S.O. 1990, CHAPTER C. 43. See also Pollitt v. Pollitt, 2011 ONSC 3162, 3 R.F.L. (7th) 151 (Ont. Sup. Ct.).
[17] I fix the costs at $14,000 which is to be reduced by Ms. Cork’s marginal tax rate of 47%, leaving an amount of $7,420.00 which is to be paid forthwith by Mr. Cork.
Métivier J.
Date: June 27, 2013
COURT FILE NO.: FC-13-339
DATE: 2013/06/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Margaret Annette Cork, Applicant
AND
David William Cork, Respondent
BEFORE: Métivier J.
COUNSEL: H. Hunter Phillips, Counsel, for the Applicant
Pam MacEachern, Counsel, for the Respondent
COSTS ENDORSEMENT
Métivier J.
Released: June 27, 2013