ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-FL-800-2
DATE: 2014/01/24

BETWEEN:

GILLES LEVESQUE
Applicant

– and –

KRISTY SOREL (CHARKO)
Respondent

Ross C. Stewart, for the Applicant

Judy L. Antymniuk, for the Respondent

HEARD: By Written Submissions

DECISION ON COSTS

KANE J.

MOTION TO VARY

[1] The respondent mother, on January 29, 2013, filed a motion to change the final consent Order of McLean J., dated June 3, 2008.

[2] The mother served a new motion on June 5, 2013, seeking an order:

(a) varying the 2008 Order, such that the father is to pay monthly child support in accordance with the Guidelines, commencing January 1, 2013 in the amount of $421 with annual adjustments thereafter,

(b) that the father pay his proportionate share of s. 7 expenses,

(c) that the father transfer an R.E.S.P., with a value of some $17,000, into her name only, and

(d) that the father pay her child support arrears owing as of May 1, 2013, in the amount of $24,420, less the current $17,000 value of the R.E.S.P., resulting in a balance of some $7,420.

[3] The father opposed the variations requested.

[4] The son resides fifty percent of the time with each parent.

[5] The parties’ respective annual incomes are $57,000 for the mother and $104,000 for the father. At the time of the order to be varied, they were $39,000 and $91,000 respectively.

[6] By prior order, the father obtained the mother’s consent to substitute child support payments to her, with his monthly contributions into an R.E.S.P. with resulting benefits to him. The father, despite this order, elected to make annual payments into the R.E.S.P., rather than monthly. The mother subsequently wished to revert to her receipt of child support. The father refused and would not disclose his income relied on the existing order.

[7] Upon argument of the motion, the parties consented to an order that:

(a) the father will pay the mother child support in accordance with the Guidelines,

(b) an agreed upon rate of sharing the cost of extraordinary expenses,

(c) re-filing by the mother of her income tax returns for a specified period and a sharing of any refund obtained as a result, and

(d) each party to maintain $50,000 and $100,000 of life insurance respectively.

[8] The other issue requiring determination was which of the parents is entitled to what proportion of the current principal and interest balance of the R.E.S.P.

DECISION RENDERED

[9] The court dismissed the mother’s claim for arrears of child support, including the mother’s claim that she receive the current balance in the R.E.S.P. The court instead ordered that the existing R.E.S.P. and accumulated value therein, was to be registered in the name of both parents with the child as sole beneficiary. Full child educational costs as incurred are to be deducted therefrom.

POSITION OF THE PARTIES AS TO COSTS

[10] The mother seeks costs totalling $7,000 based on her success, her offer of settlement and the father’s aggressive conduct in refusing to pay child support directly to her which necessitated she commence and proceed with this application to vary.

[11] Relying on his offer to settle, the outcome and alleged unreasonable conduct by the mother, the father seeks costs (a) at full recovery from May 30 to June 18, 2013 in the amount of $4,125; and (b) $2,000 on a partial indemnity scale for the period February 12 to May 30, 2013, for a total of $6,125.

OFFERS

[12] The mother served a written offer some 45 days prior to argument of the motion agreeing to settle on the basis that:

(a) she receive off-set monthly child support in the amount of $421, commencing March 1, 2013 and adjusted annually,

(b) she receive child support arrears totalling $24,503, to be paid partially by transfer of the current balance in the R.E.S.P. to the mother,

(c) a sharing of extraordinary expenses at the rate of 34.4% and 65.6%,

(d) income tax re-filing by the mother for 2008 to 2011 and a sharing of any refund received, and

(e) such offer was open for acceptance without costs until May 8, 2013 and thereafter with costs on a substantial scale until five minutes after commencement of argument.

[13] The father served two written offers of settlement, dated January 29 and May 30, 2013. The second offer replaces the first. The terms of the May 30, 2013 offer are:

(a) monthly child support payable to the mother in the amount of $412,

(b) sharing of child care costs at the rate suggested by the mother, but no obligation on the father as to any other future extraordinary expenses unless he agrees to the same,

(c) some $14,000 of the current R.E.S.P. to be transferred into the mother’s name and reserved solely for the child’s education costs. The remaining $3,300 was to be transferred into the father’s name as an overpayment of past child support and placed for the child into an R.E.S.P.,

(d) $200,000 of life insurance by each party with the other named as beneficiary to ensure child support obligations,

(e) withdrawal from F.R.O. of child support payment obligations, including any current enforcement proceedings,

(f) such offer could be accepted without costs, until June 7 at 16:00 hours and thereafter, upon payment of substantial indemnity costs back to the commencement of the application,

(g) withdrawal of the mother’s claim for child support arrears, and

(h) the terms of the offer may only be accepted in their entirety.

LEGISLATIVE PROVISIONS

[14] Subject to legislation and rules of the court, cost entitlement and quantum are at the discretion of the court. (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1))

[15] The rules provide that:

(1) A successful party is presumptively entitled to costs of a motion ─ Rule 24(1);

(2) Unless ordered otherwise, an offer of settlement will entitle the issuer to costs to the date of serving the offer and full recovery thereafter if the offeror proves that; (a) it is served one day before the motion or seven days before the trial, (b) the offer remained open for acceptance and was not accepted and (c) the offer equals or exceeds the order ─ Rule 18 (14) and (15)

(3) In exercising its discretion as to costs, the court may take a written offer to settle into account, the date thereof and it’s terms - even if entitlement is not established under Rule 18 (14) ─ Rule 18 (16).

(4) 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);

(5) As to whether conduct is reasonable or unreasonable, the court is directed to consider behaviour in relation to the issues, whether an offer was made, the reasonableness thereof and any offer withdrawn or not accepted ─ Rule 24 (5);

(6) Where success on the motion is divided, the court may apportion costs ─ Rule 24 (6);

(7) In setting costs, the court is to consider:

(a) the importance and complexity of the issues, reasonable and unreasonable conduct by a party,

(b) the lawyers hourly rates,

(c) the time property expended in the matter as well as appropriate expenses paid, and

(d) any other relevant matter ─ Rule 24 (11)

ANALYSIS

[16] The mother recovered nothing against her arrears claim of some $24,000. Her offer of settlement exceeds her outcome in the litigation. Most of the child support she sought was offered several weeks prior to the motion. She sought payment of her arrears claim from the money set aside in the R.E.S.P. That was not granted.

[17] The court did not consent to the prior order which substituted child support with payments into an R.E.S.P.

[18] The mother’s offer materially exceeds the relief she obtained.

[19] The father has been aggressive in his approach to child support for his own financial gain. In retrospect, the mother should never have consented to his proposal to convert child support into an R.E.S.P., which the father sought and obtained to reduce his future s. 7 post secondary school liability and to receive the interim tax benefits and investment accrual, none of which were available to him via payment of child support. The commencement of this litigation was necessitated solely by the father’s determination to hold onto those advantages for himself.

[20] The result obtained by the father in the decision is not equal to or below the terms of his May 30, 2013 offer of settlement in the following ways:

(a) the level of life insurance obtained is materially below the level he proposed in this offer,

(b) the quantity of child support he offered is slightly below the amount ordered on consent,

(c) his proposal to split the money in the R.E.S.P. was not obtained, nor was his right to dispute in the future whose R.E.S.P. was to be accessed first and for how much, in payment of educational costs as incurred,

(d) his veto of future extraordinary expenses beyond day care costs, which may be considerable, was not obtained,

(e) his offer is conditional upon acceptance of all provisions, and

(f) withdrawal of F.R.O.’s involvement was not obtained.

[21] The father’s offer dated January 29, 2013 required:

(a) non-involvement of F.R.O.,

(b) varying the existing order to delete the requirement that the child remain in his existing school for several more years.

These provisions are substantive and were not obtained.

DECISION

[22] Based on the above considerations, success was divided. The offers by the parties were well above the results they obtained. Neither party shall be entitled to a cost award.

Kane J.

Released: January 24, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GILLES LEVESQUE

Applicant

– and –

KRISTY SOREL (CHARKO)

Respondent

decision ON COSTS

Kane J.

Released: January 24, 2014