Todoruck v. Todoruck, 2015 ONSC 5
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jeffrey John Todoruck
Applicant
Self-Represented
- and –
Sonya Jacqueline Todoruck
Respondent
David Sherman, Counsel for the Respondent
HEARD:
November 24, 25, 26 2014
COSTS DECISION
1The respondent seeks costs against the appellant on a substantial indemnity basis as result of my decision of December 11, 2014.
2The respondent provided a written offer to settle dated November 6, 2014 in which she offered ongoing joint custody with the applicant to have one additional overnight access period mid-week whereas my order affirmed the ongoing joint custody arrangement with no midweek overnight access.
3However, the offer included a term that the mother have final decision-making authority on issues of health, education and extracurricular needs of the children whereas my order did not provide for that.
4The respondent’s offer also required the applicant to pay child support commencing September 1, 2013 based on his annual income of $97,757 or $1,809 per month. My order required child support of $1,717 per month based on his annual income of $92,000.
5Her offer was also that he pay approximately $1,285 towards the outstanding section 7 expenses whereas my order was that he pay $878 for that.
6The applicant provided a signed written offer to settle dated April 4, 2014. The first option available to the respondent therein was to simply revert back to the current separation agreement terms. The second option required the respondent to agree to an equal sharing of joint custody of the children on a 50-50 basis with the termination of the applicant’s child support obligations and the requirement of the respondent to pay the applicant $320 per month to offset the “difference in the value of the asset split”. That offer was not accepted and was not a reasonable one.
7The applicant then provided two written offers to settle dated April 1, 2014 which were only valid until April 30, 2014 and both were not signed by him. The first provided for the wife to have sole custody of the children with his having access every other weekend and one evening during the week but not overnight. The offer also required him to pay child support based on the Federal Child Support Guidelines and the sharing of section 7 expenses on a 50-50 basis. The offer required the respondent to reside with the children within the City of Hamilton but not subject to his approval.
8The applicant’s other offer maintained the joint custody arrangement of the children with the respondent having final decision-making authority and the same offer with respect to child support and residence of the children in Hamilton.
9No explanation was given why the applicant’s offers were time limited and were not available to the respondent until trial but were terminated as of the end of April 2014. They accordingly are deemed to be withdrawn on May 1, 2014.
10The respondent’s written offer does not meet the requirements of Rule 18(14) of the Family Law Rules as the result at trial was not as favourable as or more favourable than her offer. Accordingly, the respondent is not entitled to substantial indemnity costs for the entire application.
11She is, however, entitled to costs on a partial indemnity basis given her success on the major issues at trial and as the applicant at trial took the position that the children should principally reside with him or that there should be equal sharing time with children. He also at trial opposed her request that he pay child support guidelines amounts. The applicant is fully employed earning approximately $92,000 per year.
12I recognize that the applicant by my order is required to pay substantially more child support than what he was originally paying to the respondent. The applicant submitted that any costs award against him “may” adversely affect his access to the children and his ability to provide nutritious meals and suitable entertainment for the children while in his custody. However, there is no evidence that it would and if so to what extent. The applicant, as in 2003 CanLII 18880 (ON CA), 43 R.F.L. (5th) 149, is not the person with whom the children primarily reside; rather, the respondent has had to pay money to successfully defend the litigation commenced by the applicant and proceed with her own claims for continued joint custody and increased child support in accordance with the CSG, which money would otherwise have been available, at least in part, for the care of the children.
13The issues in this case were not complex or difficult although they were of considerable importance to both parties and the children. There is no evidence of unreasonable conduct on the part of the respondent that would disentitle her to an award of costs. She, in fact, offered to try and resolve the issues by way of mediation and cautioned the applicant of the risk of his being responsible for her trial costs back on April 1, 2014.
14The objective of the court in fixing the amount of the respondent’s costs is to determine an amount that is fair and reasonable for the unsuccessful applicant to pay in a particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant, the respondent. Boucher et al v. Public Accountants Council for the Province of Ontario et al (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
15Respondent’s counsel has considerable experience practicing family law over 34 years and claims a full recovery rate of $375 per hour. The partial indemnity rate is $225 per hour which is fair and reasonable. The trial took place over three days and his preparation and research time and attendance with his client of 23 hours is also reasonable.
16The applicant has the ability to pay costs although a small reduction in the costs award is being made to take into account his financial circumstances.
17The applicant accordingly shall pay to the respondent her costs on a partial indemnity basis of $9,000 plus HST of $1,170 plus disbursements inclusive of HST of $668.17.
January 2, 2015
The Honourable Mr. Justice R. J. Nightingale