Court File and Parties

Court File No.: 01-FL-1054 Date: 2016/09/19 Superior Court of Justice - Ontario

Re: Julie Cayen, Applicant And Mark Skotnicki, Respondent

Before: Justice A. Doyle

Counsel: Suzanne E. Galarneau, Counsel for the Applicant Angela Davis, Counsel for the Respondent

Heard: Written Submissions

Costs Endorsement

[1] Following a motion by the Respondent for an order varying the Final Order of Justice Beaudoin, requesting, among other things, a change of child support, retroactive adjustment of child support and determination of s. 7 expenses, the Court ordered the following:

• commencing May 1, 2016, the Respondent would pay the B.C. table amount of $2,398 for three children based on his annual income of $128,893;
• the Applicant would notify the Respondent within 30 days if a child moves out of her home;
• the children will pay for 1/3 of the tuition and the Respondent will pay 61% of the balance and Applicant will 39% of the balance;
• child support termination date was fixed based on the completion of the children’s estimated date of graduation;
• the Respondent had to maintain life insurance as security for child support;
• the Court determined retroactive child support for 2012, 2013, 2014 and 2015.

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

[3] After having considering the parties’ written submissions, the Family Law Rules, O. Reg. 114/99 (the “FLR”), the jurisprudence, the parties’ behavior and the mixed success, there will be no order as to costs. My reasons are set out below.

Respondent's Position

[4] The Respondent is requesting costs as he should not have had to incur the cost of this motion. He had offered to pay child support based on his last year’s income. The Court made that order. The Court sided in his favour in his request that the Applicant advise him if the children move out of her residence. Since the father’s income will change in 2016 due to his retirement and he is now self-employed, he asked for an annual exchange of tax returns by the parties along with an annual adjustment. The Court granted this order.

[5] He had asked the parties and the children each contribute 1/3 towards tuition. He was successful in obtaining an order that the children contribute 1/3 towards tuition although he was required to pay 61% of the balance.

[6] He does not specify the costs that he is seeking, but the bill of costs show costs on a partial indemnity basis (66%) of $8,561.79 and full indemnity of $12,972.40.

Applicant's Position

[7] The Applicant submits that she is entitled to costs in the amount of $12,500 as in her last offer to settle dated February 23, 2016 she offered that he pay ongoing support based on his 2014 income of $101,133 which would have required him to pay $1,942 per month.

[8] The offer also provided that he pay 1/3 of the tuition.

[9] She submits that he is not entitled to costs for the following reasons:

• he increased the parties’ costs by failing to comply with the FLR by not filing a financial statement as required and ignored court orders by failing to provide disclosure in a timely manner;
• rather than complying with Master MacLeod’s (as he then was) order requiring a settlement conference, he set a motion date;
• he failed to provide proof of life insurance as per the final order; and
• he requested an Order that the Court could not grant an order; i.e. order the parties to withdraw from enforcement through the Family Responsibility office.

Legal Principles

[10] Among other things, Rule 24(11) sets out the following factors to consider in determining costs: the reasonableness or unreasonableness of the parties, the issues and their importance and complexity and the lawyers’ rates and expenses are to be considered.

[11] The Ontario Court of Appeal in Serra v. Serra [2009] ONCA 395 stated that the cost rules are designed for the following 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 defences that lack merit.

[12] When dealing with offers to settle, Rule 18 sets out the factors which are to be considered when the Court exercises its discretion when awarding costs.

Analysis

[13] The Court finds that there has been mixed success.

[14] The Respondent was successful on a number of issues as set out above including:

• the Court made retroactive adjustments;
• the Court required the Applicant to exchange tax returns on annual basis and ordered that she notify him if the children moved;
• there was a court order that the children pay for 1/3 of the tuition, and
• a determination of the termination date of the child support.

[15] The Applicant was successful:

• ongoing support order was higher than offered;
• the respondent had to comply with the order for life insurance; and
• his request for non-enforcement through Family Responsibility office was dismissed.

[16] The Court has considered the factors set out in Family Law Rule 24(11), as follows:

(a) the importance, complexity and difficulty of the issues:

• These issues were important to the parties as they deal with child support, retroactive issues support, payment of tuition and life insurance. The issues were made complex as the parties had to provide an analysis and calculation for support for 5 years after considering incomes of the parties and the three children;

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

The Court finds that the Respondent’s behaviour was unreasonable in his failure to comply with the order requiring him to maintain life insurance and failure to comply with the FLR rules and court orders. He also did not follow the order of Justice Macleod which required a Settlement Conference before the hearing of the motion.

(c) the lawyer’s rates;

Both parties’ counsel’s rates are reasonable in light of their experience.

(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;

Both parties’ accounts are similar in quantum. The Applicant’s lawyer who has 25 years’ experience is a very reasonable rate and the Respondent’s lawyer who has 11 years’ experience is within the range.

(e) expenses properly paid or payable;

The disbursements appear appropriate.

[17] Therefore, in light of the above, there will be no order as to costs.

Madam Justice Doyle Date: 2016/09/19