NEWMARKET COURT FILE NO.: FC-12-40786-00

DATE: 20141128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VICKI MAE JONES
Applicant

– and –

KEVIN TODD BOUCHER
Respondent

Jaret N. Moldaver, for the Applicant

Alexandra Bignucolo, for the Respondent

HEARD: by written submissions

RULING ON COSTS

DOUGLAS J.

[1] This is my Ruling on Costs following release of my Reasons for Decision regarding the Applicant Mother’s motion for an order striking the pleadings based on the Respondent Father’s failure to comply with a temporary order regarding child support and for an order directing the Respondent to produce undertakings, and for interim costs and disbursements in the amount of $40,000 in association with an income analysis with respect to the Respondent’s income, one of the central issues in this proceeding.

[2] I found that when the motion was initiated the Respondent had incompletely answered 19 undertakings and failed altogether to answer 40 undertakings, out of a total of 90. Thus, he had failed to answer the majority of his undertakings at the time the motion was initiated. When this matter initially came before me on August 20, 2014, it quickly became apparent that the Respondent’s sworn affidavit evidence was inaccurate in describing his compliance with his undertakings. I do not have sufficient evidence before me on the basis of which to conclude that the Respondent’s affidavit was deliberately misleading. The most appropriate conclusion is that his evidence was presented with a degree of carelessness as to its accuracy.

[3] Rule 24 of the Family Law Rules establishes a presumption that a successful party is entitled to the costs of a motion and that such costs ought to be decided promptly after each step in the case.

[4] Factors to be considered include:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) 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 orders;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[5] The applicant submits that she was successful on the motion whereas the Respondent submits that the Applicant was not successful.

[6] In my view, the Applicant was clearly more successful on the motion than the Respondent. The Applicant was successful in establishing that the Respondent was in substantial non-compliance with his undertakings at the time the motion was initiated. Further, the Respondent was admittedly far behind in his child support payments at the time the motion was initiated and at the time that it was argued. While I did not order that the Respondent pay $40,000 for the Applicant to secure an income analysis with respect to the Respondent’s income, I did direct that the Respondent do so and, failing compliance, that he fund the Applicant doing so up to $25,000 initially. On balance this is a positive result for the Applicant as the Respondent had taken the position that no such order should be made.

[7] Further, while the Applicant asked for an order striking pleadings for failure of the Respondent to comply with his child support obligations and I did not grant that order, I did grant an order that the Applicant be entitled to proceed by way of 14B motion to strike pleadings in the event the Respondent failed to comply with orders regarding delivery of his still outstanding undertakings and bring himself up to date in his child support payments. Thus, again, I view this as, on balance, a result favouring the Applicant.

[8] I thus conclude that the Applicant is presumptively entitled to costs under rule 24(1) of the Family Law Rules.

[9] The issues addressed on the motion were important though not particularly complex or difficult. They were made more difficult by virtue of the Respondent’s failure to accurately and completely address the issue of undertakings compliance without the necessity of a further adjournment.

[10] The Respondent’s conduct with respect to the motion was to a degree unreasonable for reasons outlined above.

[11] The lawyer’s rates claimed in the Applicant’s Bill of Costs are not on their face unreasonable.

[12] The Applicant has submitted that the Respondent has conducted himself in bad faith and accordingly, substantial indemnity costs ought to be considered. As indicated above, although I have concluded that the Respondent’s conduct is at least “unreasonable” in that his evidence was presented with a degree of carelessness, I do not conclude that his conduct, on the evidence before me, amounts to “bad faith” within the meaning of the Family Law Rules. There is simply insufficient evidence before me on the basis of which to make that conclusion.

[13] In assessing the issue of costs I consider the additional expenditure of effort necessitated by virtue of the Respondent’s failure to accurately and directly respond to the outstanding undertakings prior to argument on August 23, 2014. I also consider that review and interpretation of the Respondent’s answers to his undertakings, provided after initiating the motion, increased costs to the Applicant.

[14] The Applicant made an Offer to Settle on August 19, 2014, the terms of which, when compared to the relief granted, do not trigger costs consequences although the Offer does demonstrate a more reasonable approach to the motion than that shown by the Respondent.

[15] The Applicant seeks costs in the amount of $28,593.16 inclusive of disbursements of HST, payable forthwith.

[16] The Respondent submits that costs in the amount of $3,000 would be appropriate.

[17] Considering the factors outlined above, I find that costs of $17,500 are appropriate and due the Applicant by the Respondent, payable at the rate of at least $2,500 per month until paid in full.

DOUGLAS J.

Released: November 28, 2014