ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-0306
DATE: 2013-12-30
B E T W E E N:
Wendy Ann Wallace,
Mary Ann Currie, for the Applicant
Applicant
- and -
Scott Alan Wallace,
William Shanks, for the Respondent
Respondent
HEARD: Via written submissions
Mr. Justice D. C. Shaw
Decision On Costs
[1] This is a decision on the costs of a motion brought by Mr. Wallace in which he sought:
(a) leave to amend his answer/claim to request spousal support;
(b) temporary spousal support;
(c) reinstatement of coverage on Ms. Wallace’s extended health plan;
(d) payment of heath care costs incurred which would have been covered under Ms. Wallace’s extended health care plan.
[2] Notwithstanding his request for leave to amend his claim to include a claim for spousal support, Mr. Wallace had in fact served and filed his amended answer/claim four months before his motion was heard, although no order had been taken out. I granted an order nunc pro tunc, approving the filing of the amended claim.
[3] On the hearing of the motion, counsel for Ms. Wallace advised that Ms. Wallace had reinstated coverage for Mr. Wallace under her extended health care plan and that she had submitted Mr. Wallace’s past health care expenses for reimbursement.
[4] The only issue, therefore, to be determined on the motion was Mr. Wallace’s claim for temporary spousal support.
[5] The parties were married in 1986. They separated in April 2011. Mr. Wallace is 53 years of age. Ms. Wallace is 5 years of age. The parties have two adult children at university whose education costs are paid through Registered Education Savings Plans and the children’s own earnings. Neither parent sought child support.
[6] Mr. Wallace is a self-employed sheet metal worker who works through his solely owned corporation. He suffered a heart attack in April 2012, which reduced his ability to work. He sought support based on his 2012 T-4 income of $43,909.28. His T-4 income for 2010 was $70,000 and in 2011 it was $87,250.
[7] Ms. Wallace’s income at the date of the motion was $82,610.44.
[8] Mr. Wallace requested spousal support of $1,212.
[9] Ms. Wallace submitted that she should not pay any spousal support. Ms. Wallace submitted that Mr. Wallace’s true income was $87,250. She submitted that (a) corporate income and (b) certain expenses claimed by the corporation, which Ms. Wallace said were for personal use, should be added to his T-4 income.
[10] I imputed income to Mr. Wallace of $66,258.28 and ordered Ms. Wallace to pay interim spousal support of $600.00 per month. The order was without prejudice to the position of either party at trial to claim, on a more complete evidentiary record, that Mr. Wallace’s income for the period covered by the order should be fixed at some amount other than the imputed amount of $66,258.28, with the right to review, retroactively, the amount that should have been paid. I ordered that the trial judge was at liberty to credit or debit either party, as the case may be, for any overpayment or underpayment that the trial judge found appropriate.
[11] The solicitor for Mr. Wallace seeks fees for the motion of $3,887.50, plus disbursements of $276.28, plus HST. The fees are based on 9.1 hours of time docketed by the solicitor at an actual hourly rate of $385, plus 2.4 hours for a law clerk at an actual hourly rate of $160. The solicitor has 33 years’ experience The clerk has 28 years’ experience.
[12] Of the time docketed by the solicitor, .8 hours relates to an attendance on the motion on February 21, 2013, which was adjourned, on consent, at the request of Mr. Wallace to allow him to file further material. There is also docketed time of .9 hours for an attendance on May 9, 2013, when the motion was adjourned and Ms. Wallace was awarded cots. The solicitor indicates that three hours were docketed for the attendance on the date the motion was argued.
[13] Mr. Wallace did not serve an offer to settle.
[14] Ms. Wallace submits that no costs should be ordered or, in the alternative, costs should be left to the trial judge. In the further alternative, she submits that costs be ordered in the amount of $1,000.
[15] Ms. Wallace contends that no costs should be awarded for that part of the motion that dealt with the amended claim. She also submits that no costs should be awarded with respect to health coverage because she consented to the extension of health coverage for Mr. Wallace and she had forwarded to Mr. Wallace, before the initial return date of the motion, reimbursement for health expenses that he had incurred.
Discussion
[16] Rule 24(1) provides that there is a presumption that a successful party is entitled to the costs of a motion. Mr. Wallace was successful in obtaining an award of spousal support and should receive costs of his motion in that regard. He is also entitled to costs of that part of the motion with respect to health care coverage because Ms. Wallace did not reinstate coverage until after service of the motion. He is not entitled to costs of that part of the motion that dealt with his request for an order for leave to amend his pleadings. There are no dockets provided by Mr. Wallace nor any details as to how much of the docketed time concerned the leave to amend.
[17] There should be no costs for the attendances on February 21, 2013 and May 9, 2013.
[18] Although Mr. Wallace did receive an order for spousal support, the award was for approximately one-half of the amount claimed in his notice of motion. Mr. Wallace had argued that none of his corporate income or corporate expenses should be imputed to him. Ms. Wallace was successful in her argument that corporate income and expenses should be imputed to Mr. Wallace, although I imputed total income of $66,258.28 rather than the $87,250 which Ms. Wallace said was appropriate.
[19] Mr. Wallace did not serve an offer to settle. This is a significant factor when, as is the case here, a party is claiming full recovery of costs.
[20] As the Court of Appeal has observed in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (34) 291, and in Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, the overriding principle in assessing costs is one of reasonableness rather than a mechanical calculation of time and hourly rates.
[21] In my view, a fair and reasonable fee for this motion, including preparation and attendance for argument, is $1,500, plus disbursements of $312.19, all inclusive of HST.
[22] In the usual case, interlocutory costs would be payable forthwith. However, in this case, I am persuaded to do otherwise on the strength of Ms. Wallace’s submissions that the support order is without prejudice to either party’s arguments for retroactive adjustments at trial.
[23] Costs are therefore fixed in favour of Mr. Wallace at $1,500, plus disbursements of $312.19, all inclusive of HST, payable at the conclusion of the trial, subject to the discretion of the trial judge to vacate all or part of those costs if Ms. Wallace is successful at trial on the issue of retroactive variation of spousal support.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: December 30, 2013
COURT FILE NO.: FS-11-0306
DATE: 2013-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wendy Ann Wallace
Applicant
- and –
Scott Alan Wallace
Respondent
DECISION ON COSTS
Shaw J.
Released: December 30, 2013
/mls