COURT FILE NO.: FC-00-1558-3
DATE: 2013/09/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GUIYING APRIL ZHANG, Applicant
AND
JOHN WYNFORD JONES, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Earl A. Atnikov, counsel for the Applicant
Wade L. Smith, counsel for the Respondent
HEARD: By Written Submissions
ENDORSEMENT with respect to costs
[1] The issues on the motion were retroactive child support, including s. 7 expenses, the return of child support, including s. 7 expenses, for overpayment of child support and ongoing child support, including s. 7 expenses. Mr. Jones was not successful on his claim for a return of child support for overpayment of child support but was successful on his claim for the final termination of child support. Ms. Zhang was unsuccessful on her claim for retroactive child support and unsuccessful on her claim for ongoing child support. As a result I have concluded that Mr. Jones was partially successful on this motion. Pursuant to Rule 24(1) of the Family Law Rules, O. Reg. 114/99, he is entitled to some contribution to his costs in view of his partial success.
[2] Cognisant of the directive of Rule 24(4), I have considered the conduct of the parties throughout this litigation. I cannot find that either party behaved in bad faith. Nor can I conclude that either party behaved unreasonably so as to deny an award of costs.
[3] Mr. Jones presented Ms. Zhang with an offer to settle on the eve of the motion. The offer is a very reasonable one and offers ongoing child support on conditions which I also find to be reasonable. Mr. Jones’ offer betters the final result on the motion. It is unfortunate that Ms. Zhang did not accept that offer. Despite the reasonableness of the offer, it was presented very late in the proceedings, when many legal fees had already been expended. I do not think that Mr. Jones’ offer triggered the automatic application of Rule 18(14). Nonetheless, all offers to settle must be considered.
[4] Ms. Zhang made no offer other than to suggest that the parties renegotiate a new child support regime and that Mr. Jones need not pay child support for three months when their son was not living with her.
[5] With respect to the factors listed in Rule 24(11), the issues on this motion, while important to the parties, were not particularly complex or difficult. I have already discussed the reasonableness or unreasonableness of the parties’ behaviour.
[6] Given the experience of both counsel in this matter, I cannot take issue with respect to the lawyers’ rate of fees. Because of the distance between the parties and the proceedings undertaken by both of them the time properly spent on the case is also not shocking nor surprising and quite reasonable in all of the circumstances of this case.
[7] With respect to Rule 23(11) (f) “any other relevant matter”, this can be a consideration of the parties’ ability to pay costs. Mr. Jones is the superior earner. Ms. Zhang will remain the principal financial support of her son going into the future unless the communication between their son and his father changes.
[8] Nonetheless it would be unfair to deprive Mr. Jones of all of his costs in view of the factors mentioned above and keeping in mind the purposes of a costs award. I therefore order Ms. Zhang to pay Mr. Jones his costs of the motion, including the costs of the case conference which costs were reserved by Mr. Justice Sheffield, in an amount that I fix at $7,000 inclusive of HST. Based on Boucher v. Public Accountant Council Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and given the nature of these proceedings and their complete and final costs, this is clearly an amount of costs that is fair and reasonable and which Ms. Zhang may have expected to pay as the completely unsuccessful party on this motion.
M. Linhares de Sousa J.
Released: September 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: GUIYING APRIL ZHANG, Applicant
AND
JOHN WYNFORD JONES, Respondent,
BEFORE: M. Linhares de Sousa J.
COUNSEL: Earl A. Atnikov, counsel for the Applicant
Wade L. Smith, counsel for the Respondent
ENDORSEMENT WITH RESPECT TO COSTS
M. Linhares de Sousa J.
Released: September 5, 2013