Court File and Parties

COURT FILE NO.: FC-13-1519 DATE: 2016/08/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sandra Gordon, Applicant AND Alain Guimont, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Self-represented Marc J. Coderre, Counsel for the Respondent

HEARD: Written submissions

COSTS ENDORSEMENT

[1] Following a motion by the Applicant for an order determining ongoing and retroactive child support, the Court ordered the following:

• The Respondent would pay child support in the amount of $854 per month based on an annual income of $100,000;
• The Court fixed arrears at $42,163.20 payable by the Respondent as of December 31, 2015; and
• There would be sharing of s. 7 special and extraordinary expenses upon receipt of written consent which is not to be unreasonably withheld; the Applicant will pay 39% and the Respondent with pay 61% of the next cost.

[2] If the parties were unable to resolve the issues of costs, the Court invited them to provide their respective submissions.

[3] After having considered the parties’ written submissions, the Family Law Rules, the jurisprudence and the parties’ behavior, there will be no order as to costs. My reasons are set out below.

Applicant’s position

[4] The Applicant submits that she was the successful party as the motion to change was necessary as the Respondent failed to review and adjust the child support provisions pursuant to the 2006 Divorce Order, although obligated to do so. She had no choice but to bring this motion to change.

[5] The Applicant is requesting $49,259 which she spent on legal fees, Mr. Stephane Savage’s report and retaining a Quebec lawyer when the Respondent attempted to bring this matter to court in Quebec.

[6] Her offer to settle dated October 6, 2014 provided that the Respondent would pay $1,189 per month based on an income of $140,000 per annum, fixed child support arrears of $70,719 and there would be a sharing of s. 7 expenses on a 60/40 split with her responsible for 40% of the expenses. The Respondent would be responsible to pay her $15,000 in costs.

Respondent’s position

[7] The Respondent is requesting costs in the amount of $5,000 based on a partial indemnity basis as the final order was closer to his offer to settle dated June 9, 2015. His offer to settle dated June 9, 2015 provided a payment of child support of $702 per month by the Respondent and fixing the arrears to $39,914. At the time of the motion, the Respondent was prepared to pay in accordance with the table amount of child support based on an annual income of $100,000.

[8] In addition, he submits that the Applicant has acted unreasonably by not accepting the Respondent’s voluntary increase of child support payments to $700 per month after the settlement conference held before Justice DeSousa. In addition, her offer to settle was not more favourable than the final decision.

[9] The Applicant did not file a proper pleaded motion to change, nevertheless the Respondent agreed to proceed. The issue of custody was settled after the settlement conference by way of a consent order.

Legal principles

[10] As stated in Serra v. Serra, 2009 ONCA 395, the cost rules are designed for the fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation; (2) to promote and encourage settlement; and (3) to control behaviour by discouraging frivolous suits if the defenses lack merit.

[11] Family Law Rule 24 creates a presumption of cost in favour of the successful party. In addition, Rule 18 sets out factors the Court consider in exercising its discretion when awarding costs if there are offers to settle.

Analysis

[12] The Respondent’s offer to settle, which was actually a letter dated Jun 9, 2015 and not signed by the Respondent, does not meet the requirements of offers to settle under the Family Law Rule 18. Nevertheless, the court can consider all attempts to negotiate when determining costs. This letter offered to fix arrears of $35,000 plus $4914 for December 2015. If she had accepted this offer, the Applicant would have received $39,914 in arrears. The Court’s final decision fixed arrears at $42,163.20. In this letter, the Respondent offered $702 per month as child support. The court ordered $854 per month.

[13] The offer contained in this letter was close to what the court offered and could attract some costs to be paid by the Applicant to the Respondent. In contrast, the Applicant’s offers were not as favourable as the court order.

[14] However, the Court needs to consider the factors set out in Family Law Rule 24: (11), as follows:

(i) the importance complexity and difficulty of the issues:

• These issues were important to the parties as they deal with support for a child. The financial analysis of the Respondent’s income included experts’ reports and a consideration of the Federal Child Support Guidelines and schedule III.

(ii) the reasonableness or unreasonableness of each party’s behaviour in the case.

• The Court found that official notice requesting tax documents to adjust child support by the Applicant occurred in 2009 and hence support was ordered retroactively to that date. The Respondent had not been cooperative in providing financial documentation to determine support.
• Therefore, the Respondent was in breach of the 2006 Divorce Order for failure to comply with the requirement of annual disclosure of tax documents. This was unreasonable and unacceptable and resulted in the Applicant incurring legal costs.
• The Applicant commenced a motion to change in 2013. At the case conference on April 15, 2014, Justice Kane ordered questioning and ordered the Respondent to provide disclosure including production of documents from 2008 for all benefits received by the Respondent from his company, 2008 to 2012 financial statements and corporate tax returns and assessment, T4 summary for the company from 2008 to 2012 and from 2008 to 2012 any benefit provided his wife.
• Eight years after the original divorce order, the Respondent finally provided disclosure. The Respondent then retained an expert to prepare an income report. He acknowledged that he was underpaying child support and that arrears were owed. The parties could not agree on quantum.
• Unfortunately, the Applicant had unrealistic expectations of what the Respondent owed her. She did not accept some of her own expert’s conclusions. Despite obtaining her own critique, she asked the court at the motion to speculate on the Respondent’s income without supporting evidence.

(iii) The Respondent’s lawyers’ rates and the time spent on the motion, expenses incurred, appear within the range. The Applicant’s counsel’s fees do appear to be substantial in light of the issues.

[15] In accordance with the Family Law Rules, costs should be decided at each step of the way. Costs were dealt with at the case conference dealing with disclosure when Justice Kane ordered the Respondent to pay costs in the amount of $3,750 before May 15, 2014.

[16] Therefore, the Applicant did obtain costs against the Respondent for his failure to comply with the Divorce Order. However, his tardiness in providing the same was a breach of a court order. Court orders must be respected. His behaviour must be considered in determining costs. Hence, there will be no order as to costs.

Justice A. Doyle Date: August 23, 2016