NEWMARKET

COURT FILE NO.: FC-07-27107

DATE: 20140801

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIE ABBALLE, Applicant

AND:

ANTONIO ABBALLE, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
I. Mang for the Applicant/Respondent

M. Maltz for the Respondent/Moving Party

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The respondent (moving party on the motion to change) was successful at trial, in that all arrears of child support were rescinded, and ongoing support was reduced to an amount commensurate with his true income.

[2] The respondent’s motion to change was commenced in January, 2012. In that pleading he requested rescission of all arrears, and to have ongoing child support set at zero. His disclosure was completed by December, 2012; no further disclosure was requested and it was acknowledged by Mr. Mang at the outset of trial that the respondent’s financial disclosure was thorough and complete.

[3] The respondent made a written offer to settle on May 5, 2014 which satisfies the requirements of subrule 18(14). It was clearly more advantageous to the applicant than the final order of the court. The respondent is presumptively entitled to costs. Also relevant is the fact that the exact same terms of settlement were offered orally at the first case conference on April 26, 2013, and again at the settlement conference on December 19, 2013. Accordingly, the respondent made ongoing efforts to avoid the costs of the litigation and of a trial.

[4] The applicant made no offer to settle in the proceeding.

[5] Mr. Mang argues on behalf of the applicant that she should be given some relief for costs on any of three grounds: 1) the respondent’s conduct was unreasonable with respect to his payment of the child support and arrears prior to commencing his motion to change; 2) as the custodial parent, the court should consider the impact of a costs award on the children’s best interests; and 3) the time expended as detailed in the respondent’s Costs Outline is excessive.

[6] With respect to the first ground, subrules 24(4) and (5) provide:

24(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behavior in relation to the issues from the time they arose, including whether the party made an order to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[7] Given the wording of the regulation, it is this court’s interpretation that the behaviour of a party prior to the commencement of a case is not to be taken into account in the assessment of whether a party has behaved unreasonably “during a case”. The phrase in subrule 24(5)(a), “in relation to the issues from the time they arose”, would therefore have to refer to the issues arising during the case. There is nothing in the respondent’s behaviour since commencing his motion to change that can be characterized as unreasonable, and his fulsome and timely disclosure shows that he took the litigation seriously and made it a priority. This is not to say that pre-litigation conduct should not be taken into account as a relevant matter under Rule 24(11)(f), but it is not an appropriate consideration for a decision concerning the unreasonableness of a party’s behaviour under subrule 24(5).

[8] The respondent’s payment history was commented upon in the Reasons. He overpaid support by approximately $40,000 and is not seeking to have any of that money returned. He paid support, even when he did not personally have the money, and not only as a result of enforcement proceedings by the Family Responsibility Office, although certainly he responded to their demands to avoid incarceration. This cannot be characterized as behaviour that should modify an award of costs.

[9] With respect to the second ground, it is acknowledged that the applicant is the custodian of the children, now aged 22 and 20 and attending university. Both have part-time jobs. The court learned at trial that the earnings of both daughters are retained largely by each of them for their own purposes. In the case of the eldest, her annual income now exceeds $20,000. Their tuition is free due to a tuition waiver. Accordingly, a costs award will not affect them in the same way that it would a minor child, as commented on by the Court of Appeal in M (C.A.) v. M (D.) 2003 18880 (ON CA), 2003 CarswellOnt 3606 (C.A.). While the applicant has lived frugally, she is debt-free. Her financial struggles are not to be understated, but it is recognized that the respondent has experienced equivalent hardships and is certainly not debt-free.

[10] With respect to the argument regarding excessive time spent on certain aspects of trial preparation and attendance, the court disagrees with such a submission. The fees incurred are reasonable for the case and the issues raised, particularly given that those issues spanned a 14 year period and financial records were produced for that entire period.

[11] Having considered all of the above factors and those set out in subrule 24(11), and stepping back to consider what is fair and reasonable in all the circumstances of the case, this court orders that the applicant shall pay the respondent his costs of the case fixed in the amount of $25,000 inclusive of HST.

HEALEY J.

Date: August 1, 2014