Endorsement

COURT FILE NO.: FC-09-1010-01

DATE: 20140326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Steven Greig, Applicant

AND:

Wendy Lynn Young-Greig, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL:
Jodi A. S. Armstrong, for the Applicant

S. Lawrence Liquornik, for the Respondent

HEARD: By written submissions

[1] I heard a motion in this matter on December 5, 2013. The motion was to determine the reduction in child support resulting from a change of residence of the parties’ oldest daughter, Dakota, who had earlier moved from her mother’s residence to her father’s. Ms. Young-Greig also requested spousal support. Because of uncertainty as to Mr. Greig’s 2013 bonus, the matter was adjourned to January 9, 2014. I issued my endorsement on January 26, 2014.

[2] In that endorsement, I adjusted support retroactively to May 1, 2012, being the date that Dakota moved from her mother’s residence to her father’s. Ongoing temporary child support was set at $303 per month and spousal support was set at $150 per month. The Applicant now requests costs of the motion on a full indemnity basis. Mr. Liquornik suggests that no costs be payable.

[3] Prior to the motion, on August 15, 2013, Ms. Armstrong wrote to Mr. Liquornik and offered that ongoing unspecified support be set at $500 per month. This offer was confirmed in a formal offer to settle made pursuant to the Rules on November 1, 2013. Although the Respondent also apparently made an offer, the terms of that offer were not disclosed to me in either party’s costs submissions.

Analysis

[4] In considering costs, under Rule 24(1) of the Family Law Rules,[^1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), in fixing the amount of costs, I may take into account the “importance, complexity or difficulty of the issues” as well as “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.”

[5] In determining success, I may take into account the offers to settle submitted by each of the parties: see Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] O.J. No. 330 (S.C.J.) at paragraph 9 and Lawson v. Lawson, 2008 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.) at paragraph 7. More importantly, in the event that a party is more successful at the motion than his or her offer, I am bound to order costs on a full indemnity basis after the date of the offer: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(14) as noted above.

[6] The only formal offer to settle which has been placed before me is the offer made by the Applicant on November 1, 2013. That offer appears to comply with the formal requirements of Rule 18; it was signed by the client, was served well prior to the time limitations contained in the rule and it expired subsequent to the commencement of argument of the motion. The offer also appears to be more generous to the Respondent than was the result at the motion; it provided for no retroactive adjustment of support and the quantum of ongoing support, with or without tax consequences, was more under the offer than was my order.

[7] Mr. Liquornik argues that the offer was ambiguous as it does not specify whether the support was spousal or child support. He appears to have been confused as outlined in his correspondence of November 19, 2013, as he asks Ms. Armstrong whether the offer is of $500 in spousal support beyond the differential child support payable.

[8] In light of the fact that the separation agreement only provides for $1.00 per year in spousal support, I do not find the offer to be ambiguous. For Mr. Greig, the issue was the amount of differential child support payable as that is what he sought to vary in this motion to change. Up to the date of the motion, he was paying child support of an amount well over $1,000 per month and no spousal support. It was only the Respondent who was requesting increased spousal support. As such, it is apparent to me that Mr. Greig made a formal offer to the Respondent of an interim variation of ongoing child support to the amount of $500 per month.

[9] Mr. Liquornik also notes that Ms. Young-Greig was successful on a number of issues that were argued, and that her success in these issues should be reflected in the costs award. The issues that he notes that she was successful in were the argued issue of whether the previous years’ income of Mr. Greig should be the income used for support purposes (I determined that Mr. Greig’s previous years’ income would not be the measure of support) and the issue of whether the Applicant would suffer a hardship if support were determined by his present income (I determined that there would be no hardship).

[10] However, Mr. Liquornik’s client was unsuccessful on a number of other issues, including the issue of when Dakota moved from her residence, the issue of inclusion of Mr. Greig’s mileage payment in support and the significant request made by Mr. Liquornik to depart from the Spousal Support Advisory Guidelines. And I would note that all of these issues are issues of analysis rather than of result. In reviewing the issue of success, I note that the measure of success on a motion is the ultimate result measured against the motion and offers, if any, and not the success on individual issues of analysis.

[11] Mr. Liquornik also raises issues of unreasonable conduct, insofar as he states that Mr. Greig’s attempt to arbitrarily reduce support in 2012 caused hardship and was without foundation. However, there were conduct issues by both parties, including the rather blatant attempt by Ms. Young-Greig to obtain an e-mail from Dakota supporting the contention that Dakota spent significant periods of time at her mother’s. In my endorsement, I noted my concerns about the filing of a legal assistant’s affidavit commenting on substantive issues in the motion. I do not find unreasonable conduct which would affect the costs award within the meaning of Rule 24(4).

[12] Accordingly, I find that the Applicant was successful on the result in the motion and as such is entitled to his costs of this motion. Moreover, I also find that the offer made by the Applicant on November 14, 2013 is an offer which complies with Rule 18(14) of the Family Law Rules. The Respondent has not offered any compelling reason why I should depart from the mandatory provisions of rule 18(14) which require me to order full indemnity costs after the date of service of that offer.

[13] The offer served on November 14, 2013 is not the only offer made by the Applicant. He also made the same offer in his lawyer’s correspondence dated August 15, 2013. That letter does not comply with Rule 18(14), but had that offer been accepted, there would have been no necessity for a motion. I intend to take that correspondence into account in determining costs as I am entitled to do under Rule 18(16).

[14] Of the lawyer’s and paralegal’s time claimed by the Applicant of $11,880, the time incurred by the Applicant after November 14, 2013 totals $9,382.50. Taking into account disbursements, HST and the complimentary discount noted on the account, the total costs payable subsequent to service of the offer are $9,916.70.[^2]

[15] Taking into account the earlier correspondence of August 15, 2013 and the Applicant’s success on the motion, as well as the fact that this was not a particularly complex matter, I find that the total costs payable by the Respondent to the Applicant for the motion are $10,500 inclusive of disbursements and HST. The costs shall be firstly paid by set off against the after tax portion of the LIRA payable to the Respondent by the Applicant under the separation agreement. The remaining costs payable after that set off shall be payable within 60 days of agreement as to the set off amount.

[16] If the parties are not able to agree on the after tax amount owing on the LIRA pursuant to the separation agreement, the parties may speak to that issue before me by way of teleconference scheduled through the trial coordinator at Barrie.

McDERMOT J.

Date: March 26, 2014

[^1]: O. Reg. 114/99

[^2]: Time spent of $9,382.50 + disbursements of $53.50 (inclusive of HST) + HST on fees of $1,219.72 – discount of $739.02 = $9,916.70