CITATION: Dorey v. Adams, 2015 ONSC 2370

COURT FILE NO.: 25-2013D

DATE: April 14, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Wayne W. Dorey, applicant

AND:

Shelley M. (Dorey) Adams, respondent

BEFORE: MITROW J.

COUNSEL: David A. Reid for the applicant

Gregory Stewart for the respondent

HEARD: Written submissions filed

ENDORSEMENT

[1] Pursuant to my reasons released January 15, 2015, dealing with motions brought by both parties for interim relief, counsel have forwarded their written costs submissions: the respondent’s submissions dated January 29, 2015; the applicant’s submissions dated February 12, 2015; and the respondent’s reply dated February 19, 2015.

[2] In addition to dealing with costs of the motions, the applicant in his costs submissions asks the court to include a provision requiring the respondent to provide to the applicant, on a continuing basis, information as to the educational status of the child Austin, who is now age 19, and who resides with the respondent and who continues to attend high school. The applicant pays the respondent interim child support for Austin (and also for Andrew, age 17). I find it is appropriate to deal with disclosure, and I do so as set out below.

Costs of the Motions

[3] The respondent achieved more success than the applicant on the motions, and she is presumptively entitled to costs.

[4] The respondent was successful as follows: (a) she received interim spousal support of $1,000 per month; she received interim child support for both Austin and Andrew based on the table amount pursuant to the applicant’s income of $100,000; she received a payment of $648.95 for reimbursement of some medical expenses, and importantly, an interim order was made requiring the applicant to add the respondent to his various medical plans in place of his common-law partner.

[5] I have considered the respondent’s offer to settle. However, that offer does not engage the automatic costs consequences of rule 18(14).

[6] I take into account that the respondent’s claim in her motion for pre-judgment and post-judgment interest was dismissed. Although the dismissal was without prejudice to the respondent’s right to assert this claim at trial, the applicant was successful on this issue and is entitled to his costs.

[7] The respondent, in her written submissions does not state the quantum of costs that she seeks. She attached a bill of costs showing 28.60 hours at $250 per hour for a total of $7,150; when disbursements and HST are added, the total bill is $8,420.08. This bill has no breakdown of the individual time dockets; it shows only the total.

[8] A second bill of costs for oral questioning of the respondent is attached, totalling $1,904.05 all inclusive. I agree with the applicant’s submission that this oral questioning should be part of the main application costs, not the motion costs. This questioning was conducted by the applicant; little, if any, reference was made to the transcript on the hearing of the motions.

[9] I have considered the factors in r. 24(11). I find there was some unreasonable behaviour by both parties. First, it was completely unacceptable and unreasonable that the proof of Austin’s marks from June 2014, and confirmation of his current enrollment and marks, were not forthcoming until the day that the motions were argued. It matters absolutely not that Austin had attained the age of majority and had control over the release of this disclosure. It is the respondent who is in receipt of child support for Austin; she cannot wipe her hands clean of her responsibility to provide this disclosure, hiding behind the argument that Austin has attained the age of majority. The respondent is responsible for obtaining all this information from Austin. She can request him to sign a direction. Simply put, if the respondent wants child support from the applicant, for Austin, to be paid to her, then she has to provide the information. Further, it appears from the respondent’s reply submissions that the respondent still does not understand that this is her obligation, and that it is not up to the applicant to pursue Austin for this disclosure.

[10] I also find unreasonable, the applicant’s conduct in removing the respondent from his benefit plan and substituting his common-law partner.

[11] The overriding principle in awarding costs is reasonableness; the amount that the unsuccessful party should pay must be reasonable and should not be based on any exact measure of the actual costs incurred by the successful party: Davies v. Clarington (Municipality), 2009 ONCA 722, 2009 CarswellOnt 6185 (Ont. C.A.) at para. 52.

[12] I fix the respondent’s costs at $5,000, all inclusive; from that amount, I deduct $750 for her unreasonable behaviour. (See r. 24(4).) I fix the applicant’s costs at $1,000, all inclusive, regarding the interest claim, but I reduce that amount by $750 for his unreasonable behaviour, pursuant to r. 24(4). The net result is $4,000 owing by the applicant.

[13] I order the applicant to pay to the respondent, forthwith, her costs of the motions fixed in the amount of $4,000 inclusive of assessable disbursements and HST. This costs order shall constitute a support order within the meaning of section 1 of the Family Responsibility and Support Arrears Enforcement Act, 1996.

[14] The order below is necessary in relation to disclosure. I have included both children to underscore to the applicant her obligation as to disclosure.

[15] The following additional order is made:

So long as the applicant is required to pay child support to the respondent for either Austin, or Andrew, or both pursuant to my interim order dated January 15, 2015, then the following conditions apply in respect of each of the children, Austin and Andrew:

(a) the respondent shall provide to the applicant all the report cards for each child within 15 days of the issuance of the report card;

(b) within 15 days of the date of this order, the respondent shall provide to the applicant all report cards that have been issued, and not yet provided to the applicant for the current school year, for each child, starting September 2014;

(c) the respondent shall advise the applicant, in writing, forthwith, should either child cease attending school or should either child start attending school on less than a full-time basis, together with a letter from the school verifying this information;

(d) if a child is of the age of majority, it remains the responsibility of the respondent to make arrangements with the child, and to obtain from the child, all of the foregoing disclosure; and

(e) if the respondent fails to comply with this order for disclosure, then the applicant is at liberty to bring a motion to suspend his obligations to pay interim child support, or for such other interim order as is just and proper.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 14, 2015