SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F1006/12

DATE: June 23, 2014

RE: Tania Darlene Rawluk-Harness, applicant

AND:

Bradley John Harness, respondent

BEFORE: MITROW J.

COUNSEL:
Marie Tukara for the applicant

Iain Sneddon for the respondent

HEARD: Written submissions filed

ENDORSEMENT on costs

[1] I have reviewed the parties’ written costs submissions pursuant to my endorsement dated April 28, 2014 dealing with interim child support payable by the respondent, the said costs submissions being received as follows: by the applicant dated May 12, 2014, with an amendment dated May 16, 2014; the respondent’s submissions on May 26, 2014; and the applicant’s reply on May 28, 2014.

[2] The applicant was successful on the central issue on the motion imputing income to the respondent pursuant to s.19(1)(h) of the Guidelines because of the benefit to the respondent in electing to be paid by his solely-owned corporation via dividend rather than salary Accordingly, it was necessary to gross-up the respondent’s income. The respondent’s argument that the actual dividend should be used was rejected.

[3] Also, on the secondary issue, as to the commencement date of the interim child support, the applicant was successful in having the increased interim child support payments to take effect on May 1, 2013.

[4] The respondent argues there was divided success; that each party should bear his or her own costs. The respondent points to the fact that the applicant in her motion sought interim child support for two children in the amount of $935 per month based on an income of $62,924; however the order was for $892 per month based on an income of $59,945.

[5] The reality is that the order, although lower than the amount sought in the motion, was still fairly close to the amount sought. The income gross-up amount of $9520 as calculated by DIVORCEmate was accepted by the court with the proviso that it “can always be adjusted at trial if better evidence is available” (see para. 40 of the endorsement).

[6] There was no divided success. The respondent argued for no gross-up. His position was rejected. The applicant was successful on this issue, and also on the issue of the commencement date for increased interim child support payments.

[7] Accordingly, the applicant was successful on the motion and is presumptively entitled to costs.

[8] I have considered the factors in r. 24(11). The only issue was interim child support.

[9] The applicant points to various conduct of the respondent, alleging that he has acted unreasonably throughout on the issue of interim child support. In my view however, there is only one aspect of the respondent’s conduct that can fairly be said to constitute unreasonable behaviour: his failure to increase the child support immediately, to at least the table amount based on his income of $50,000, which is the amount of income that he was arguing should be used.

[10] The applicant seeks an order for all of the costs she has incurred on the motion, and refers the court to the bill of costs forming part of her submissions. The “fee summary” on the first page of the bill of costs shows $4,231.50 for “total” fees on the motion; however the total fees docketed as shown on page two, are in the amount of $5,642. Both of these amounts are exclusive of disbursements and H.S.T. It is not clear what amount the applicant is seeking; accordingly I rely on page one (“fee summary”), and I address costs on the basis that the applicant is seeking fees of $4,231.50, disbursements of $217.75, and H.S.T. on both those amounts.

[11] The overriding principle in ordering an unsuccessful party to pay costs is reasonableness. I find that the hourly rate for the applicant’s lawyer and disbursements are reasonable.

[12] However this is not a case where the respondent should be ordered to pay for the “total time” spent by the applicant’s lawyer. Firstly r. 18(14) is not engaged. More importantly however, the applicant failed to serve a rule 18 offer to settle. She should have done so. The respondent did serve an offer (the day before the motion), but the child support offered was too low at $743 per month, being based on a $50,000 income which was the actual amount of the dividend.

[13] Motions for interim relief are expensive. Litigants who fail to serve a rule 18 offer on a motion should expect the court to view that fact with disfavour when dealing with costs; successful litigants who fail to serve a rule 18 offer should brace themselves for a potential reduction in the amount of costs that they might otherwise have been awarded. Such is the present case.

[14] In family law cases, it is important to serve offers and to serve them often: Grealey v. Carlson, 2014 ONSC 554, para.10, (S.C.J.).

[15] I order the respondent to pay to the applicant her costs of the motion fixed in the amount of $2,500 for fees and disbursements, plus $325 H.S.T. for a total of $2,825. There is no basis to delay payment of costs, as argued by the respondent. The costs are payable forthwith.

[16] In addition, it is ordered that the full amount of this costs order shall be enforceable by the Director as a support order pursuant to the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, [as amended].

[17] An order shall issue accordingly.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 23, 2014