SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FD1640/03

DATE: January 29, 2013

RE: Maria-Luisa Plouffe, applicant

AND:

Damian Thomas Plouffe, respondent

BEFORE: MITROW J.

COUNSEL:
William R. Clayton for the applicant

Terry W. Hainsworth for the respondent

HEARD: January 28, 2013

ENDORSEMENT ON COSTS

[1] Pursuant to my reasons for judgment at trial dated August 28, 2012, counsel were permitted to argue costs if the parties could not agree. The costs issue was argued on January 28, 2013.

[2] The applicant, Maria-Luisa Plouffe (“Ms. Plouffe”), has filed a bill of costs totalling $46,659.59 (allocated $38,832 for fees, $2,459.67 for disbursements, with the balance being HST).

[3] The respondent, Damian Thomas Plouffe (“Mr. Plouffe”), takes no issue with the time spent, other than a deduction of $2,800 in fees (rounded) representing costs incurred at various steps in the case (for example conferences) where no costs order was made. Ms. Plouffe agrees with this deduction.

[4] Each party served an offer to settle shortly before this trial commenced. Both parties agree that neither offer engages Rule 18 of the Family Law Rules, O. Reg. 114/99. However, in reviewing the offers, I take into account that Ms. Plouffe’s offer was much closer than Mr. Plouffe’s offer to the result at trial.

[5] Ms. Plouffe submitted that the fees portion should be reduced to $32,000 (rounded) representing a reduction of $2,800 (as agreed) plus a further $4,000 reduction to reflect that Ms. Plouffe was not successful on the issue of retroactive s. 7 dance expenses as that claim was dismissed at trial.

[6] Mr. Plouffe submits that costs should be determined on a partial indemnity basis at two-thirds of the fees claimed (after deducting the $2,800 as agreed) which amounts to $24,000 (being two-thirds of $36,000). He submits there should be a further deduction of $2,000 in fees to take into account the divided success.

[7] Regarding disbursements, Mr. Plouffe’s only objection relates to photocopies. He requests that the amount claimed totalling $1,811.25 should be reduced by $500 plus HST to reflect all the paper generated by the various and extensive briefs prepared and filed on Ms. Plouffe’s behalf in furtherance of her unsuccessful s. 7 claim.

[8] The trial involved issues of child support and spousal support. A significant amount of the trial dealt with the determination of Mr. Plouffe’s income. The only non-support issue at trial was the issue regarding dividing the children’s RESPs, but this was dealt with largely by an agreed statement of fact and did not occupy very much trial time.

[9] Ms. Plouffe is presumptively entitled to costs on the issues of spousal support, child support and the division of RESPs.

[10] Regarding the factors in rule 24(11), this case was clearly important to both parties. There was some complexity on the issue of determining Mr. Plouffe’s income given his self-employment by a corporation that he owns solely. Each party’s behaviour was reasonable throughout. No issue is taken by Mr. Plouffe regarding the lawyers’ rates and time spent on behalf of Ms. Plouffe. A minor issue is taken regarding disbursements as noted above.

[11] After deducting the $2,800, the fees claimed are $36,000 (rounded). This represents, in essence, full recovery of costs which is not appropriate in the circumstances.

[12] I allow fees at $30,000 less a reduction of $3,000 for divided success, for a net amount of $27,000 for fees. For reasons urged by Mr. Plouffe, I reduce the disbursements by $500, but the reduction is inclusive of HST. This brings the total disbursements to $2,279.43 inclusive of HST. Therefore, the amount payable for costs is:

(a)

(b)

(c)

Fees

13% HST on fees

Disbursements

(inclusive of HST)

Total

$27,000.00

$3,510.00

$2,279.43

$32,789.43

[13] Mr. Plouffe shall pay forthwith to Ms. Plouffe her costs of the proceeding fixed in the amount of $32,789.43 inclusive of HST and recoverable disbursements. This amount shall constitute a “support order” as defined in subsection 1(1), subparagraph (g) in the definition of “support order” as set out in the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 29, 2013