Court File and Parties
Court File No.: 01-FL-808-1
Date: 2013-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
Between:
Kenneth Ugwu
Adriana Doyle, for the Applicant
Applicant
- and -
Rachel Paquin
Rose-Lynn Gauthier, for the Respondent
Respondent
Heard: via written submissions
Madam Justice B. R. Warkentin
Decision on Costs
[1] In my endorsement of May 29, 2013 I requested written submissions from the parties regarding the issue of costs. I have now received those written submissions and have considered their positions. The parties have also asked me to determine the appropriate payment arrangement for the Applicant to pay retroactive of child support.
[2] This was the Respondent's motion to change. The parties disputed the wording of a separation agreement as to when child support would end and also disputed with whom one of their two children resided for the purposes of calculating child support.
[3] There was mixed success in this motion. The Respondent (moving party) was successful in her interpretation of the separation agreement that the parties' son Sebastien remained a child of the marriage as well as the retroactive period for which child support should be recalculated. The Applicant (responding party), was successful in his position regarding the residence of Sebastien.
[4] The Respondent seeks costs on a full indemnity basis for the entire proceeding of $33,475.59.
[5] The Applicant incurred costs of $19,860.93 and seeks reimbursement on a partial indemnity basis.
[6] The parties exchanged a variety of offers during this litigation however none of the offers were applicable, in that they did not meet or exceed the findings I made in my decision.
General Principles of Costs
[7] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[8] Rule 24 of the Family Law Rules provides that there is a presumption that a successful party is entitled to the costs of a motion. If success is divided, the court may apportion costs as appropriate.
[9] The factors which must be considered under Rule 24(11) are:
(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 signatures of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
Disposition
[10] The Respondent, although she did not receive everything she was seeking, was more successful in this matter than the Applicant.
[11] The issues in this case were not complex. The parties were unable to reach agreement on any of the issues in this Motion to Change. This is not a case in which an award of full indemnity costs is appropriate.
[12] In the circumstances of my findings in this case and having reviewed the Bill of Costs of counsel for the Respondent, I award costs to the Respondent in the amount of $5,000.00 inclusive of HST and disbursements. Because this litigation was solely for the purpose of collecting support, the costs award shall be considered support for purposes of collection.
[13] The parties were able to reach agreement on the quantum of retroactive child support owing by the Applicant and it is set at $12,149.00. The Applicant proposes to pay this sum by a lump sum payment of $8,000.00 immediately and $4,149.00 in 12 equal installments together with ongoing child support until April 2014.
[14] The Respondent insists the entire amount of retroactive child should be paid in a lump sum immediately.
[15] I accept the Applicant's proposal and therefore order the retroactive support be paid as set out in paragraph 13 above.
Madam Justice B. R. Warkentin
Released: September 16, 2013
COURT FILE NO.: 01-FL-808-1
DATE: 2013-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kenneth Ugwu
Applicant
- and –
Rachel Paquin
Respondent
DECISION ON COSTS
Warkentin J.
Released: September 16, 2013