COURT FILE NO.: FC-08-1681-1 DATE: 2016/06/10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KIM MARTINUK Applicant/Mother – and – MARK GRAHAM Respondent/Father
Tamara Scarowsky, for the Applicant Self-Represented
HEARD: By Written Submissions
costs decision kane j.
RELIEF SOUGHT AND SUCCESS OBTAINED
FATHER
[1] The moving father was unsuccessful on his motion to vary including his claims:
(a) For a declaration that the child resided with his father 40% to 50% of the time since November 1, 2009; (b) Cancelling his obligation to pay child support retroactive to April 2009; (c) For repayment of child support he paid since the 2009 Order in the amount of $29,580; and (d) Payment of set-off child support to him by the mother since April 2009 which amounted to some $54,000.
[2] The father acknowledges he should pay costs to the mother but that costs be limited to $20,000.
MOTHER
[3] The mother sought variation of the same order and relief as follows which includes the results thereof as determined by the court:
(a) Dismissal of the father’s motion to change the Order – successful; (b) An order requiring the father to pay eight months of retroactive child support totalling $4,277 for the period August 1, 2008 to March 31, 2009, during which period no child support was paid – denied; (c) Increased retroactive Guideline child support based on the father`s income less amounts paid, retroactive to August 1, 2008 and until August 31, 2015 – withdrawn upon commencement of argument; (d) After August 2015 if the son attends university in another city, child support for the months of May 1 to August 31 – withdrawn upon commencement of argument; (e) Retroactive s. 7 expenses since August 2008 totalling $7,842 – partially successful in the court ordering retroactive payment of $2,651; (f) An order that the father maintain a $100,000 life insurance policy with the mother as irrevocable beneficiary to secure his child support obligation – partially successful in the court ordering insurance coverage limited to $68,000; (g) An order that the father maintain the child as beneficiary of his employment health and dental insurance during the accessibility of that insurance coverage – unopposed and granted; (h) An order that the insurance carrier of the father’s health and dental insurance be permitted to deal directly with the mother with respect to claims by the mother and to reimburse her directly – granted; (i) An order requiring the parties to contribute $10,000 per academic year towards the son’s university costs on a proportionate basis according to their income upon expiration of the RESP savings – partially granted but limited to the parental annual contribution limit not to exceed $3,000 jointly; (j) Enforcement by FRO as to support payments owed by the father to the mother – granted; and (k) A divorce – unopposed and granted.
[4] The mother was partially successful.
COSTS REQUESTED
[5] The applicant mother seeks full indemnity costs in the amount of $40,847 consisting of:
(a) Fees in the amount of $35,139 plus HST thereon of $4,568; (b) Costs upon argument of the motion in the amount of $750; and (c) Disbursements including HST totalling $389.
[6] The mother seeks full indemnity costs based on:
(a) Her offer of settlement as revised and dated September 4 and 19, 2014; (b) Bad faith conduct by the respondent father; and (c) The factors listed in Rule 24(11) of the Family Law Rules, O. Reg. 114/99.
[7] The mother’s success in fully defending the father’s claim and her partial success in her claims normally would result in a cost award on a partial indemnity scale.
OFFERS OF SETTLEMENT
[8] Each party submitted offers of settlement.
[9] The terms of the father’s offers of settlement greatly exceeded the outcome and are not therefore relevant.
[10] The mother’s first offer of settlement including the payment of $15,000 fees, based on the father’s present submission that there be $20,000 costs awarded to her, exceeded the results she obtained on the motions. That offer expired on November 1, 2014.
[11] The mother made another offer on April 24, 2015 in which she renewed her September 2014 first offer subject to the father contributing $20,000 towards her legal fees which the father now acknowledges he should pay. Subject to legal fees this final offer by the mother exceeds the results she obtained.
[12] The father did not accept this offer which remained open for acceptance until April 30, 2015.
BAD FAITH
[13] The father demonstrated bad faith in that he:
(a) Presented a calendar of past dates the son was with him which he himself admitted was inaccurate and long after being ordered to produce evidence as to the time the son was with him; and (b) Should have been aware that he had no evidence, or insufficient evidence, to prove the son since November, 2009 spent a minimum of 40% of the time with him. Despite his lack of records to evidence that position, the father pursued his claim for re-payment of his child support payments and payment of child support by the mother. He knew or should have known his claim without evidence amounted to a large potential liability to the mother and would require her presentation and argument of detailed historical records.
IMPORTANCE OF THE ISSUES
[14] The issues in this proceeding involving primarily money were of importance to each party given their respective limited incomes.
COMPLEXITY OF THE PROCEEDING
[15] Individually, the issues were not complex.
[16] Complexity existed in the form of the number of issues and the length of time over which time calculations and financial records had to be produced and argued.
REASONABLENESS OR UNREASONABLENESS OF THE PARTIES
[17] The mother was reasonable in her offers and in not pursing certain of her claims in argument.
[18] The father’s pursuit of his claims was unreasonable. His offers were not reasonable and were vague as to outstanding issues in dispute.
[19] The father:
(a) Could have terminated his payment of child support in September 2014; (b) Could have avoided any contribution towards section 7 expenses arrears paid by the mother when he knew she had been paying most of such expenses since 2008; (c) Paid no increased child support based on his increased income since 2009; and (d) Failed to pay any child support between August 2008 and March 2009;
and despite the above, chose to pursue his claim upon argument of the motion.
HOURLY RATES AND TIME CHARGED
[20] The hourly rates of counsel given the year of call are reasonable.
[21] There is no duplication of lawyer time.
[22] The court has reduced the total hours claimed for the following reasons:
(a) The father initially suggested he would claim a revised division of property. He did not however include such a claim in his motion to vary. The draft bill of costs includes work on that issue which the court has deducted as this cost award is in relation to the proceeding as filed. (b) Several remedies in the mother’s response were not pursued. Those matters necessitated legal consideration, discussion and advice to the client and drafting. That work is not recoverable in this costs award. (c) The mother was unsuccessful on her claim of retroactive child support back to 2009. The costs of presenting and arguing that issue is not recoverable. (d) The mother’s draft bill includes time and charges for work by three law clerks. Some of their work would otherwise be performed by a lawyer and is appropriate. Some of the clerks’ work charged however is more clerical and would normally be done by a legal assistant such as photocopying, couriering documents, preparing an index for case conference brief, proofreading a case conference brief and assembling documents. The court has deducted this category of work typical of a legal assistant which is more considered as part of general overhead expenses and included in a lawyer’s hourly rate.
[23] The total fees for items (a) and (d) above are reduced by $7,500. A further reduction is estimated as to items (b) and (c) above.
[24] Combined, the court reduces the fees by $12,000, from $35,139 to $23,139.
DISBURSEMENTS
[25] The disbursements charged are reasonable.
CONCLUSION
[26] The mother’s offer of settlement on this above reduced allowable work basis entitles her to costs on a full indemnity scale as to the reduced amount allowed herein.
[27] The respondent father is ordered to pay total costs of $26,582 to the applicant mother, consisting of:
(a) Fees – $22,516, plus HST of $2,927 for a total of $25,443; (b) Fees upon argument of the motion, including HST– $750; (c) Disbursements, including HST – $389.
[28] This costs award, like child support, is recoverable through FRO: Johanns v. Fulford, 2011 ONSC 6354. 15 R.F.L. (7th) 192.
Kane J. Released: June 10, 2016