Breton v. Breton, 2015 ONSC 1694

COURT FILE NO.: 5790/12

DATE: March 16, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Anita Breton and Nicole Breton, applicants

AND:

Robert Marcel Breton, respondent

BEFORE: MITROW J.

COUNSEL: Mervin L. Riddell for Anita Breton

Nicole Breton in person

Karen M. King for Robert Breton

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] This costs endorsement follows my endorsement dated December 9, 2014 on a motion brought by the applicant, Anita Breton (“Ms. Breton), for: (1) compliance with a number of the respondent’s unfulfilled undertakings given on oral questioning; (2) requiring the respondent, Robert Breton (“Mr. Breton), to make an advance payment to Ms. Breton for her legal fees and expenses pursuant to r. 24(12) or, alternately, an advance from her share of net sale proceeds of the matrimonial home that are being held in trust.

[2] The co-applicant, Nicole Breton, took no position on the motion.

[3] I have reviewed the following written costs submissions forwarded to me on January 14, 2015: Ms. Breton’s submissions; Mr. Breton’s responding submissions; and Ms. Breton’s reply.

[4] Ms. Breton seeks costs “at least” in the sum of $6,292.69. Mr. Breton submits that there was divided success and that no costs should be awarded; alternatively, if the court awards costs, he submits that he should be awarded his costs of defending the motion, and he attaches a costs outline totalling $3,861.90.

[5] Ms. Breton achieved some success on her motion and there is a presumption that she is entitled to costs: r. 24(1).

[6] Neither party filed an offer to settle in relation to the motion.

[7] Mr. Breton submits that Ms. Breton has acted in bad faith and unreasonably; he points to, for example, her late disclosure as to an apparently significant income increase, and that she has not made herself available, yet, for oral questioning.

[8] I agree with Ms. Breton’s submission that the oral questioning issue was not germane to the motion before me; as to the late disclosure of income by Ms. Breton, Mr. Breton alleged that Ms. Breton should have been paying much more in child support in 2012 and 2013, given her recently disclosed incomes in those years.

[9] During argument, Ms. Breton conceded that she failed to comply with r. 13(15) by failing to disclose immediately significant increases in her income for 2012 and 2013. Although the issue of retrospective child support is an issue for the trial judge, the proper disclosure of Ms. Breton’s income history was relevant to that part of her motion where she sought money to fund her legal fees.

[10] Accordingly, I do consider that behaviour as discussed below; however, I reject Mr. Breton’s submission that Ms. Breton’s conduct rose to the level of “bad faith.”

[11] I have reviewed the costs outline prepared by Mr. Riddell. His hourly rate of $275 is most reasonable given his seniority.

[12] The overriding principle in awarding costs is reasonableness. The court should reflect on the reasonable amount that should be paid by the unsuccessful party, rather than any exact measure of the successful party’s actual costs: Davies v. Clarington (Municipality), 2009 ONCA 722, 2009 CarswellOnt 6185 (Ont. C.A.) at para. 52.

[13] I view the motion as being divided, for purposes of costs, into two equal parts: the issue of undertakings and the issue of Ms. Breton’s request for money for legal fees.

[14] In considering the factors in r. 24(11), I find the amount of $2,500 is reasonable for Mr. Breton to pay for costs in relation to the issue of the undertakings. This takes into account that Mr. Breton’s behaviour in refusing to comply with undertakings was unreasonable. It should not have been necessary for Ms. Breton to bring that motion.

[15] In relation to the second part of the motion, I also allocate a total of $2,500 in costs. However, that portion of the motion had two components: the claim under r. 24(12) and, alternatively, a release of money from Ms. Breton’s share of the matrimonial home sale proceeds. While Ms. Breton submits that little time was spent on the r. 24(12) claim, the fact remains that there was time spent on that claim and that Mr. Breton was forced to defend the r. 24(12) claim and he was successful. I fix his entitlement to costs at $1,000 to be paid by Ms. Breton. The remaining $1,500 is allocated to the balance of the second part of the motion. Ms. Breton was successful in obtaining an order that $10,000 be released to her from her share of the matrimonial home sale proceeds. This would leave a net of $500 owing by Mr. Breton; however, I reduce that to zero because of Ms. Breton’s unreasonable behaviour in failing to make timely financial disclosure: see r. 24(4).

[16] I order the respondent, Robert Breton, to pay to the applicant, Anita Breton, her costs of her motion fixed at $2,500 inclusive of HST and assessable disbursements. This amount is payable forthwith and, if money still remains held in trust from Mr. Breton’s share of the matrimonial home sale proceeds, then the costs shall be paid out of that money.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 16, 2015