ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-04-008995-0002
DATE: 20130913
BETWEEN:
Alessandro Roberto D’Ovidio
Applicant
– and –
Allison Rita Pinheiro Clement
Respondent
E. Mourao, for the Applicant
Self-Represented
MOTION HEARD: July 24, 2013
COSTS ENDORSEMENT
MILLER, J.
[1] Allison Clement brought a Motion to Change the order of O’Connor, J. made November 10, 2010. Ms Clement sought child support for Anthony D’Ovidio born June 30, 1991 from September 2011 through April 2012; child support for Andrea D’Ovidio born April 4, 1993 from September 2011 on an ongoing basis while she is a fulltime student and a contribution from Mr. D’Ovidio, proportionate to his income, for the post-secondary education expenses of Anthony for the 2011/2012 school year, and for Andrea for 2012/2013 and for the next three years of her post-secondary program.
[2] Ms Clement further took the position for the purposes of calculating the quantum of child support and s.7 expenses that the income of both parties should be grossed up to reflect the fact that no provincial tax is paid, and as that is the basis upon which child support was calculated in past court orders.
[3] Alessandro D’Ovidio took the position that no child support should be payable for Anthony as he lived away from home while attending school; he was prepared to pay half of Anthony’s rent for May through August 2011 but takes the position that he should not have to contribute to Anthony’s post-secondary expenses for the school year 2011/2012.
[4] Mr. D’Ovidio took the position that he should not pay child support for Andrea from September 2011 through August 2012 as she was not a fulltime student. He is prepared to pay child support for Andrea from September 2012 on an ongoing basis until she completes her first degree.
[5] Mr. D’Ovidio took the position that in calculating the quantum of child support and s.7 expenses payable his income should not be grossed up but Ms Clement’s income should.
[6] I made a determination at paragraph 43 of my decision that for September 2011 through April 2012 Mr. D’Ovidio shall pay child support for both Anthony and Andrea based on his Line 150 income for 2010 of $36,924 at $533 per month for a total of $5,330. That was in error as it should have been eight months at $533 for a total of $4,264. Paragraph 43 should be amended accordingly. Paragraph 58 should also therefore be adjusted to reflect that correction requiring Mr. D’Ovidio to pay support arrears of $5,596.
Orders
[7] Mr. D’Ovidio was ordered to pay $993 to Ms Clement for half of Anthony’s rent for May through August 2011.
[8] Mr. D’Ovidio is ordered to pay arrears of child support for Andrea and Anthony totalling $5,596.
[9] Mr. D’Ovidio is ordered to pay Guideline child support for Andrea based on his 2012 income of $37,535 at $331 per month from July 1, 2013 and on the first day of each month thereafter until July 1, 2014 when the amount payable shall be adjusted in accordance with Mr. D’Ovidios income for 2013. Payment of child support shall continue to be payable for Andrea as long as she resides with Ms Clement and until the completion of her first degree, anticipated to be in the Spring of 2016. The amount payable shall be adjusted each July in accordance with Mr. D’Ovidios income for the previous calendar year.
[10] Mr. D’Ovidio is ordered to pay $5,054 to Anthony toward his 2011-2012 post-secondary expenses.
[11] Mr. D’Ovidio is ordered to pay $1,049 to Andrea toward her 2012-2013 post-secondary expenses.
[12] Each party is ordered to pay $3,333 to Andrea toward her post-secondary expenses no later than September 1, 2013 and each September 1 thereafter until Andrea completes her degree.
[13] Ms Clement is ordered to provide copies of Andrea’s course lists, transcripts and receipt of any funds from OSAP, grants, scholarships or bursaries to Mr. D’Ovidio while Andrea is attending school.
[14] The parties are ordered to provide copies of their income tax returns and Notices of Assessment for the previous calendar year to each other no later than June 1 of each year commencing June 1, 2014 and each year thereafter as long as Andrea is attending school.
[15] In accordance with Rule 24(1) of the Family Law Rules there is a presumption that the successful party is entitled to costs. Rule 24 (11) provides:
A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[16] Mr. D’Ovidio takes the position that he is entitled to costs of $15,606 based on the divided success on the motion.
[17] Mr. D’Ovidio served an offer to settle December 4, 2012. The offer was less generous than the result achieved by Ms Clement.
[18] Ms Clement seeks costs of $15,080.94 including fees paid to a paralegal, to an accounting service and to an investigative service. Included in this is also $6,000 of her own time billed at $100 per hour.
[19] Ms Clement takes the position that she is entitled to costs on a full recovery basis as Mr. D’Ovidio has acted in bad faith. She relies on Mr. D’Ovidio’s delay in providing financial disclosure. Ms Clement also relies on the fact that she made an offer to settle June 1, 2013 which was more favourable to Mr. D’Ovidio. She takes the position she is at least entitled to full recovery costs from the date the offer was made.
[20] Pursuant to Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R.(3d) 330 at paragraph 26:
The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity.
[21] While I am satisfied that Ms Clement devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, she is on disability it cannot be said that she forwent remunerative activity in order to do so.
[22] Rule 24(6) provides that the court may apportion costs where success is divided.
[23] While it is clear that neither party was completely successful, in assessing the degree to which success was divided, I find that Ms Clement prevailed on much of what was argued.
[24] I am satisfied that Ms Clement is entitled to her actual costs incurred, which are well documented, totalling $9,080.94. I am also satisfied that the costs, as they relate to support, should be payable through the Family Responsibility Office.
[25] Mr. D’Ovidio is ordered to pay Ms Clements’ costs fixed at $9,080.94, enforceable as support through the Family Responsibility Office.
MILLER, J.
Released: September 13, 2013
D’Ovidio v. Clement, 2013 ONSC 5805
COURT FILE NO.: FS-04-008995-0002
DATE: 20130913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alessandro Roberto D’Ovidio
Applicant
– and –
Allison Rita Pinheiro Clement
Respondent
COSTS ENDORSEMENT
MILLER, J.
Released: September 13, 2013