SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-377455
DATE: 20130813

Parties

RE: bryan james Seaton, Applicant

• and -

xiao qiu zheng (a.k.a. JENNY ZHENG), Respondent

BEFORE: Justice S. M. Stevenson

COUNSEL:
Joel Skapinker, for the Applicant
Andrea L. Di Battista, for the Respondent

DATE HEARD: June 20, 2013

ENDORSEMENT AS TO COSTS

[1] In my Endorsement dated June 28, 2013 with respect to the motion brought by the Respondent, I urged the parties to agree on costs but if they were unable to do so, I asked that they provide me with their written submissions. I have now had an opportunity to review the parties' written submissions.

[2] The Applicant seeks costs on a partial indemnity basis in the amount of $10,933.88, plus HST. The Respondent seeks costs on a full recovery basis in the amount of $24,248.79 or in the alternative, on a partial recovery basis in the amount of $14,174.15.

[3] The issue of costs in a family law proceeding is determined by Rules 18 and 24 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”).

[4] Under Rule 24(1) of the FLRs, the successful party is presumed to be entitled to recover costs.

[5] Both parties submit that they have been successful on this motion. The Applicant contends that he has been successful in that the major issue on the motion involved the imputation of income to him. He submits that he has been successful as an income of $29,000 was imputed to him and not an income of $100,000 as sought by the Respondent. He also submits that he agreed to quarterly disclosure of investment funds, he was successful in retaining control of the children's funds and in obtaining a mutual preservation order.

[6] The Respondent contends that she has been largely successful on her motion as child support was ordered, the Applicant was to return amounts deducted off previous child support payments to the Respondent and she was now to receive the Child Tax Benefit. She further contends that the Applicant was ordered to pay interest payments owed to her from her investments and to provide an accounting of both her investment funds and those of the children on a quarterly basis. A preservation order was made and the issue of the disputed contents from the home was to be determined at trial.

[7] Taking into consideration the submissions of the parties, Rule 24(1) and the factors set out in Rule 24(11), I decline to order costs to either party. I do not find that either party was entirely successful on this motion, but rather there was divided success. Even though Rule 24(6) allows the court to apportion costs as appropriate if there is divided success, I do not find that the situation warrants an order for costs to either party. It also does not appear that any formal Offers to Settle were served as none were provided with either party's costs submissions.

[8] The Respondent was successful in obtaining an order for child support retroactive to the date she assumed the care of the children. The Respondent was also successful in obtaining an order that she receive her interest payments on her investments from the Applicant and that there be an accounting of the investments for her and the children. Additionally, the Applicant was ordered to continue to contribute to section 7 expenses under the Child Support Guidelines (most of which he agreed to at the hearing of the motion), including childcare costs as sought by the Respondent.

[9] However, the child support amount ordered was not in the significant amount that the Respondent sought on the motion as I declined to impute the income requested to the Applicant given the lack of evidence at this stage to support the Respondent's position. I found that the issue of the imputation of income was best left to be determined at trial, including the issue of whether the Applicant continued to receive monetary gifts from his parents as alleged by the Respondent. As such, the Applicant was substantially successful on the issue of imputation of income.

[10] The Applicant should not have been receiving the Child Tax Benefit for the children and while I acknowledge that the Applicant agreed to change this to the Respondent, this had not been completed as of the date of the hearing of the motion. Further, the Applicant improperly withheld interest payments from the Respondent and deducted payments from child support as he determined that the Respondent had retained some of his household contents. These were ordered to be paid to the Respondent. Quarterly disclosure was ordered to be made by the Applicant regarding the investments and although the Applicant contends that he agreed to this, this should have been provided without the necessity of a court order.

[11] Given all of these factors, I decline to order costs.

Stevenson J.

DATE: August 13, 2013