ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-1695
DATE: 2014/01/17
BETWEEN:
VIRGINIE CANTAVE
Applicant
– and –
PIERRE CARLENS CANTAVE
Respondent
Self-represented at this point
Odette Rwigamba, for the Respondent
HEARD: By Written Submissions
decision ON COSTS
kane j.
[1] This court apologizes to the parties and their counsel for the delay in rendering this cost decision.
MOTION AND CROSS-MOTION
[2] Each party had brought an interim motion.
[3] The applicant’s motion sought an order that the divorce proceedings be severed from the corollary relief claimed. This order was granted on consent.
[4] The respondent in his motion sought: (a) interim child support; (b) s. 7 extraordinary child expenses; (c) interim spousal support; and (d) arrears for each of these three heads of relief.
[5] For the purposes of the above remedies, the respondent submitted his annual income was limited to $12,000.
[6] Counsel for the respondent sent a broad offer of settlement on December 3, 2012. The terms thereof include the two children remaining as long as they wish in France, joint custody, primary residence to the father, liberal access to the mother, monthly child support commencing July 1, 2012, in the amount of $2,069, the parents each pay a share of extraordinary expenses, the applicant paying monthly spousal support of $3,200 for 15 years and division of their accumulated pension credits.
[7] The applicant served an equally broad written offer of settlement dated February 15, 2013. She offered to pay child support in the amount of $1,991 per month in accordance with the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] inclusive of any and all special or extraordinary expenses. In this offer, the applicant also offered to pay monthly spousal support of $500 for two years commencing March 1, 2013. Such offer of settlement also included terms as to custody, access and property settlement.
[8] The applicant acknowledged the jurisdiction of this court on all issues other than spousal support which she has disputed.
[9] The parties signed an interim separation agreement on August 10, 2011, at the request of the respondent. Pursuant thereto, the father was to remain with the children in France and return with them to Ottawa in June, 2012. The applicant pursuant to that agreement paid support for the husband and the children to the respondent of $4,000 per month. She unilaterally reduced that monthly payment to $1,200 after the respondent refused to return to Ottawa with the children as provided for in the agreement.
DECISION
[10] The interim order of this court determined that:
(1) This court has jurisdiction to deal with the issues of a divorce of the parties, child support, special expenses and spousal support.
(2) Arrears of child and spousal support should not be determined on this interim motion.
(3) The applicant was to pay interim child support in accordance with the Guidelines in the amount of $2,003 per month commencing March 1, 2013.
(4) This court imputed income to the respondent in the amount of $50,000 per year, inclusive of his declared income of $12,000.
(5) The court reduced the annual extraordinary expenses being claimed by the respondent. The court determined that the present annual extraordinary expenses of the children were $5,893 and that the parties were to pay their proportionate share thereof.
(6) Based upon the combined imputed income to the respondent, the applicant was ordered to pay monthly interim spousal support to the respondent in the amount of $1,300 which is substantially below the amount claimed.
POSITION OF THE PARTIES AS TO COSTS
[11] The applicant submits that there should be no order of costs as the parties shared success on the above motions.
[12] The respondent seeks an award of costs on a substantial indemnity scale in the amount of $11,368 inclusive of tax and disbursements on the basis that he was substantially successful in these motions. He argues he is entitled to this higher scale of costs because of the unreasonable position taken by the applicant on the issues determined.
FAMILY LAW RULES
[13] The above rules provide that:
(1) A successful party is presumptively entitled to costs of a motion – Rule 24(1);
(2) A successful party may however be deprived of costs or ordered to pay the unsuccessful party’s costs in the event of unreasonable behaviour – Rule 24 (4);
(3) As to whether conduct is reasonable or unreasonable, the court is directed to consider behaviour in relation to the issues and the reasonableness of any offer made, withdrew or failed to accept – Rule 24 (5);
(4) Where success on the motion is divided, the court may apportion costs – Rule 24 (6);
(5) In setting costs, the court is to consider the importance and complexity of the issues, and the reasonable and unreasonable conduct by a party;
(6) The court is to consider the lawyers hourly rates;
(7) The court is to consider the time properly expended in the matter as well as appropriate expenses paid; and
(8) Any other relevant matter. Rule 24 (11)
ANALYSIS
[14] The respondent was more successful than the applicant on the motions. The applicant was successful on several important issues. The written offers by each party were global and covered all issues in the action, some of which remain outstanding. It appears neither party communicated offers limited to the issues on the motions. The written offers exchanged are not determinative of the costs on these motions.
[15] The respondent’s argument that the applicant has been unreasonable at this stage in the proceeding and on these motions ignores his breach of their interim written agreement which required that he return to Ottawa with the children and the presumption presumably that he would resume his former or alternate employment. A party should not, in the form of a cost award, be rewarded for this breach of a written contract which thereupon necessitated litigation of several of these issues. The applicant has never on the evidence presented denied her financial obligations towards the children. Interim spousal support only arose upon the respondent’s refusal to honour his contractual commitment to return to Canada in the summer of 2012.
DECISION
[16] Based on the above considerations, there shall be no order as to costs on these motions.
Kane J.
Released: January 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VIRGINIE CANTAVE
Applicant
– and –
PIERRE CARLENS CANTAVE
Respondent
DECISION ON COSTS
Kane J.
Released: January 17, 2014