Burnett v. Nieuwenhuysen, 2015 ONSC 3225
COURT FILE NO.: 3233/15
DATE: 2015-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LINDA AVRIL BURNETT
Applicant
– and –
BOB NIEUWENHUYSEN
Respondent
John Paul Paciocco, for the Applicant
Self-represented
DIANE BURNETT Co-Respondent
HEARD: April 17, 2015
reasons on costs
JUSTICE E. GAREAU:
[1] On April 17, 2015 the court heard a motion brought by the applicant for child support, both current and retroactive and a claim for section 7 expenses in relation to a child, Adam Nieuwenhuysen born June 4, 1999.
[2] With the consent of the parties, the court’s decision on the motion resulted in a final order with respect to the aforementioned issues.
[3] The court released a written decision on April 23, 2015 ordering essentially the following:
(a) that there be ongoing child support in the amount of $1,112.00 per month payable by the respondent to the applicant based on the respondent’s gross annual income of $129,700.00;
(b) that retroactive child support be fixed at $5,500.00 payable by the respondent to the applicant;
(c) that the applicant’s claim for section 7 expenses is dismissed.
[4] The applicant, Linda Burnett, is requesting costs from the respondent in the amount of $9,178.45 broken down as follows:
Fees: $7,959.25
HST: 1,034.70
Disbursements: 184.50
[5] In the context of family law cases, costs are governed by Rule 24 of the Family Law Rules. Pursuant to Rule 24(1) there is a presumption that a successful party is entitled to costs. This is to be tempered by the overall principle in law that costs are ultimately in the discretion of the court. Rule 18 of the Family Law Rules requires the court to consider all offers to settle made by the parties in determining whether it is appropriate to award costs in a proceeding.
[6] In particular, Rules 18(14), (15) and (16) read as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer.
COSTS CONSEQUENCES – BURDEN OF PROOF
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).
COSTS – DISCRETION OF COURT
(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.
[7] If the court concludes that an order for costs is appropriate, in assessing the quantum of costs, the court is directed by Rule 24(11) to consider the following factors in making that assessment:
(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 order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[8] Prior to the motion being argued and in fact prior to the proceedings being commenced by Dr. Burnett, there was a formal proposal for settlement forwarded to the respondent by letter dated October 14, 2014 from the solicitor for the applicant. This letter appears at Tab 3 of the applicant’s written submissions on costs. That offer proposes ongoing child support at the table amount based on the respondent’s income, retroactive child support in the amount of $5,500.00 up to October 31, 2014 and the sum of $150.00 per month for section 7 expenses. The respondent’s response to that offer is at Tab 2 of the applicant’s written submissions on costs and is in the form of an e-mail dated October 18, 2014 at 12:29 a.m. to the applicant which reads as follows:
“You might as well proceed with your lawyer…based on the current 24K per year I have left over, I can’t afford to pay you $17,000.00 per year, plus, I don’t believe that custody will default to you, btw, I can always agree to settle immediately prior to trial, leaving you with your “court costs”.
[9] The above offer was made before legal proceedings were commenced by the applicant. The applicant also made a formal offer to settle in writing pursuant to the Rules. To put the offer into context for the respondent, the solicitor for the applicant sent an e-mail to the respondent on April 9, 2015 at 10:28 a.m. That e-mail is at Tab 4 of the applicant’s written submissions on costs and reads as follows:
“Mr. Nieuwenhuysen,
You will be receiving this morning an Offer to Settle now signed by Dr. Burnett. The intention of the Offer to Settle is to bring the action to an end completely. You will be receiving with it some updated calculations on the claim for arrears which will be attached to a further short affidavit of Dr. Burnett.
The calculation is intended to illustrate the differential between what you have actually been paid versus what we say should have been paid since Adam began residing with his aunt.
I appreciate you wish to argue that you should only be required to pay 50% of the Child Support Guideline amount for 2 children for Adam’s support. Your position on this point is not unique and has been argued before the courts in the past. The courts have consistently found no merit in that argument and have ordered the full table amount for 1 child when children reside in different households. As a courtesy, I am attaching the case of Harquail v. Martin which is well-written and easy to understand. It addresses and dismisses the point you are trying to make.
Child support cases are meant to be determined with a minimum of expense to the parties and with consistent outcomes for children in similar situations. These were the driving principles behind the enactment of the Child Support Guidelines.
The position you have taken and your refusal to pay child support in accordance with the Child Support Guidelines has caused and continues to cause Dr. Burnett to needlessly expend money on legal fees. Given the fact that she has been gracious enough to step in to care for Adam under difficult circumstances only to be met with your opposition on the payment of proper child support will not, in my respectful view, play out well for you before a judge. At the end of the hearing, the judge will be asked to determine who should properly be ordered to cover the legal expenses of the hearing. We will of course be advocating for you to do so given the circumstances and the position put forth by you. To this end, we will be relying upon the Offer to Settle and this e-mail as part of those submissions.
You are encouraged again to seek the advice of a family law lawyer and to strongly give consideration to the Offer to Settle.
If there are aspects of the Offer to Settle you wish to comment on, then please do so in writing only.
Thank you.
JP – John Paul Paciocco”
[10] The formal offer to settle is also attached at Tab 4 of the applicant’s written submissions on costs. The offer is dated April 9, 2015. The relevant paragraphs are paragraphs 5 and 6 which reads as follows:
“5. The respondent Bob Nieuwenhuysen shall pay to the applicant Linda Avril Burnett for the support of Adam George Nieuwenhuysen born June 4, 1999:
(a) The Child Support Guideline table amount of $1,112.00 per month commencing May 1, 2015 based upon the applicant Bob Nieuwenhuysen’s annual income of approximately $129,700.00 and;
(b) The sum of $100.00 per month commencing May 1, 2015 as a general contribution to Section 7 expenses for the said child.
- Arrears of child support owed by the respondent Bob Nieuwenhuysen to the applicant Linda Avril Burnett, shall be fixed in the amount of $6,000.00 as of April 30, 2015. The respondent Bob Nieuwenhuysen shall repay the arrears at the rate of $200.00 per month commencing May 1, 2015 until paid in full.”
[11] I do not agree with the position taken by the respondent that he enjoyed the success on the motion or, alternatively, that the success on the motion was divided. In my view, the applicant enjoyed the preponderance of success in the litigation. She was successful in obtaining the table amount of child support pursuant to the Child Support Guideline legislation and an amount of retroactive child support. The amount of child support ordered was the table amount, which was proposed both prior to and after the litigation was commenced. The amount of retroactive child support proposed in the offers to settle was very close to what was ultimately ordered by the court. The only area where the applicant was unsuccessful was in her claim for section 7 expenses. The applicant proposed $100.00 monthly be paid and the court declined to order any section 7 contribution to be paid by the respondent, Bob Nieuwenhuysen.
[12] The applicant had the preponderance of success and is entitled to costs pursuant to s. 24(1) of the Family Law Rules. This is especially so in consideration of the two offers to settle made by the applicant; one before the litigation was commenced and one after the litigation was commenced, but before the motion was argued.
[13] The applicant has submitted her bill of costs on a partial indemnity basis. In my view, this is the appropriate scale for costs to be paid considering Rule 24 of the Family Law Rules and, in particular, Rule 24(11).
[14] In reviewing the applicant’s bill of costs and claim for costs in the amount of $9,178.45, inclusive of HST and disbursements, I take no issue with the hourly rate charged and most of the entries submitted. My view is that there should be a reduction in some of the preparation times claimed and an overall reduction to reflect the fact that the applicant did not succeed in her claim for section 7 expenses and that some of the time had to relate to the access issue, which was resolved by the parties prior to the motion being argued.
[15] After reducing the amounts as aforementioned, I am of the view that the appropriate amount for costs is in the amount of $6,000.00 all in.
[16] Therefore, after considering all of the circumstances of this case and the principles applicable with respect to costs, including Rules 18 and 24 of the Family Law Rules, it is ordered that the respondent, Bob Nieuwenhuysen, pay costs to the applicant, Linda Avril Burnett, in the amount of $6,000.00, inclusive of disbursements and HST. These costs are payable forthwith.
Justice E. Gareau
Released: May 22, 2015
COURT FILE NO.: 3233/15
DATE: 2015-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LINDA AVRIL BURNETT
Applicant
– and –
BOB NIEUWENHUYSEN
Respondent
DIANE BURNETT Co-Respondent
REASONS ON COSTS
Justice E. Gareau
Released: May 22, 2015