Donald Ross Scott v. Brenda Jane Gray, 2013 ONSC 7446

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 311/02

DATE: 2013/12/03

BETWEEN:

DONALD ROSS SCOTT

John H. Cunningham, for the Applicant

Applicant

• and -

BRENDA JANE GRAY

Self-represented Respondent

Respondent

The Honourable Madam Justice W.L. MacPherson

Costs Endorsement

Background

1A motion to change was brought by the applicant. After a three day trial in July 2013, an order was made to terminate child support for both children and to apportion the contribution toward Brendon’s s. 7 expenses being primarily post-secondary education expenses.

2The respondent’s claim that spousal support be revived was dismissed, as there was no evidence of a material change in circumstances since the signing of the Minutes of Settlement.

3The parties were invited to make written submissions on costs and I have now had an opportunity to review those submissions.

Positions on Costs

Positions on Costs

4The applicant claims costs of $26,000.00 comprised of fees of $24,000.00, disbursements of $253.15 and applicable HST. This represents fees on a partial indemnity basis from October 2011 (prior to commencement of the proceedings in June 2012) until the Case Conference of November 23, 2012 and on a substantial indemnity basis thereafter due to the respondent’s failure to provide full disclosure of the child’s income and expenses, which was not forthcoming until the Settlement Conference on March 11, 2013. The applicant also relies on an Offer to Settle dated May 1, 2013 and subsequent correspondence.

5The respondent submits that success was divided and that each party should be responsible for their own costs.

Decision on Costs

Decision on Costs

6There were multiple issues that were determined. It is clear that the respondent did not succeed in regard to the spousal support claim.

7On the child support issues, there was somewhat divided success. The parties were able to agree on the termination date for child support for Devin which was dealt with at the Case Conference. As of the trial, there was a substantial difference in their positions as to the termination of child support for Brendon. The applicant’s initial position was that the child support should have ended in April 2011 when he travelled to Alberta. Following the trial, this position was amended such that he agreed to provide child support until the child’s co-op placement finished in August 2011 and that the obligation would revive again in September 2012 until the child completed his schooling, which extended the obligation to and including May 1, 2013.

8The respondent’s position was that the child support should have continued to be paid continuously even though the child was not living with her, was employed on a full-time basis and earning a good income. This position was not accepted by the Court.

9The reason that success was divided was that there was an adjustment to the child support obligation based on increases in the applicant’s income over the years. The respondent did obtain an order for contribution to the child’s medical expenses. She also did obtain an order that the applicant owed more than $14,000.00 as his contribution toward the child’s education expenses.

10The difficulty is that it is impossible to assess whether the applicant’s Offer to Settle which was made in May 2013 was better than the order made at trial. Obviously, there continued to be an overpayment as the support obligation for Brendon did end for almost a year until it was revived and then terminated upon completion of the two year program. Support continued to be paid through FRO, but it is not clear as to what are the appropriate payments to be attributed to the applicant as these amounts in the May 1, 2013 calculations differ from those submitted as part of the written costs submissions.

11There are further difficulties with the costs claimed in that some of the costs preceded the commencement of the proceeding and some of the costs claimed included steps (Case Conference and Settlement Conference) that preceded the trial. It is clear under the Rules that costs are to be determined at each step of the proceeding. This has been confirmed by the Court of Appeal in Islam v. Rahman, 2007 ONCA 622, [2007] O.J. No. 3416 and, as such, the amount claimed for preparing and attending at the Conferences cannot be included in any cost awarded. If there had been a failure to provide disclosure and to do so in a timely manner that should have been addressed at the Settlement Conference.

12In reviewing the Bill of Costs, the total time shown was in excess of 62 hours. With regard to the time related to the trial, the time shown as having been spent appears to be excessive, particularly as the matters in dispute were not overly complex. The time shown for attendances on July10 and July 12, 2013 indicated 11.67 hours each day, clearly in excess of the actual amount of time that was spent in court. Given Mr. Cunningham’s years of experience, an hourly rate of $300.00 would be appropriate on a substantial indemnity basis.

13It is also imperative that I consider the principles set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont C.A.) which confirms that it is not simply a mathematical calculation of the time properly spent multiplied by the lawyer’s hourly rate, but an award of costs should reflect what is a fair and reasonable amount to be paid by an unsuccessful party in all of the circumstances.

14I am also mindful of the fact that there is a significant disparity in the incomes of the parties. The respondent is in receipt of CPP disability and earns an income of less than $10,000.00 per year, whereas the applicant’s income has routinely been in excess of $100,000.00 per year. A cost award will no doubt impose a financial hardship on the respondent.

15On the other hand, ability to pay cannot shield a party from a cost award, particularly when they pursue a claim such as revival of spousal support, which was not successful and which did unnecessarily lengthen the course of the trial.

16After considering the circumstances of this case, including the provisions of Rule 24 of the Family Law Rules, an order shall go requiring the respondent to pay costs to the applicant in the amount of $3,000.00.

MacPherson J.