Boyer v Brown, 2017 ONSC 2047

Court File and Parties

COURT FILE NO.: FC-12-2425 DATE: 2017/04/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helene Georgette Boyer, Applicant AND Michael Brown, Respondent

BEFORE: Madam Justice L. Sheard

COUNSEL: Catherine Calvert, Counsel for the Applicant Tanya C. Davies, Counsel for the Respondent

HEARD: In Writing

Costs Decision on Motion

SHEARD, J.

1This costs awards is in respect of the motion brought by the Applicant mother (“Mother”) for a temporary order for the payment of child support arrears and for ongoing child support.

Overview

2The arrears in child support dated back to 2012. On the motion, I determined that the Respondent father (“Father”) owed arrears of child support for 2012 to 2014 of $39,059.28. Those arrears accrued when the Father paid nominal or minimal support for the three children of the marriage and at a time when he was earning a six-figure income. I further determined that the Father owed arrears of child support of $11,417.28 for each of 2015 and 2016. Finally, for 2017, income of $49,628.00 was imputed to the Father and he was ordered to pay guideline support using that income figure.

3The Father failed to provide disclosure of the corporate records or a copy of his 2013 income tax return or to provide any disclosure or information about the business owned by his current partner, in which he claims to have a 40% interest. The Father has not complied with the two disclosure orders made against him, one on November 1, 2013 and the second on September 22, 2016.

4As set out in para. 39 of my reasons on the motion, the Father’s refusal to provide any meaningful financial disclosure and his lack of debts on his financial statements led to a conclusion that he was trying to conceal his true income from the Mother.

Positions of the Parties

5The Mother seeks full indemnity costs of the motion of $10,734.99, which includes disbursements and HST. The Mother’s counsel was called to the bar in 2014 and charges an hourly rate of $200.00.

6In his submissions, the Father acknowledges that the Mother was successful on the motion but asks the Court to take into account that his business does not provide him with a steady cash flow and, in view of the his overall financial circumstances, asks that the Court to fix costs at $5,000.00.

Factors

7The factors to be considered when fixing costs are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”) and include that the successful party is presumed to be entitled to costs; the reasonableness of the behaviour of each party; any offer to settle; any acts of bad faith by any party; the importance, complexity or difficulty of the matter; the scale of costs, hourly rates and time spent; and the reasonable expectations of the losing party.

Success

8As set out above, the Mother has been entirely successful on the motion, which is conceded by the father.

Complexity and Importance of the Issues

9The Father argues, and I agree, that the issues on this motion were not overly complex. However, providing support for one’s children is very important. The Father had the ability to pay proper support for his children but chose not to do so.

Unreasonable Behaviour or Bad Faith

10As set out above, even at the date of the motion, the Father had not complied with the disclosure orders made against him in 2013 and 2016. In part, income was imputed to him because he refused to provide full disclosure of his corporate earnings and assets. As noted at para. 31 of the Reasons on the motion, at the time when he was not providing support for his children, the father’s financial statement states that he was spending $150.00 per month to care for his pets, $425.00 on his car, $150.00 on meals outside the home, and $100.00 per month for alcohol and tobacco. Further, while the Father asserted that he did not have sufficient income to pay for his debts, that assertion was not supported by his financial statement, which did not show a corresponding increase in his debt. Moreover, the Father owns a home, in which he has significant equity, and which he is able to rent out to earn income, as he lives in a home owned by his current partner. By contrast, the Mother’s financial statement shows that she is unable to pay her credit card debts.

11The Father delivered a responding affidavit sworn January 12, 2007. In it, rather than providing proof of the alleged job search he undertook or the disclosure as he was ordered to do, the Father used that affidavit to reference the Mother’s “multi-year affair” that he alleged took a financial toll on the family. The Father also complains in his affidavit that the Mother kept over 85% of the household contents, which meant he had to start from scratch to furnish his own home.

12I conclude that the Father has acted unreasonably when he failed to provide for the proper support of his children when he was making a high income and refused to provide the financial disclosure he was ordered to make. It is easy to infer from his affidavit of January 12, 2017 that the Father still harbours ill-will towards the Mother. Taken as a whole, the Fathers’ behaviour, leads to the conclusion that the Father has behaved unreasonably and has acted in bad faith.

Hourly Rates, Time Spent, Proportionality and Offers to Settle

13The Mother points to her offers to settle as a basis for her request for full indemnity costs. In fact, it appears that her first offer to settle was on January 6, 2017, eleven days before the motion. Her second offer was on January 12, 2017 and her final offer was made on January 16, 2017, the day before the motion was argued. The first two offers provided that each party would bear their own costs. In her last offer, the Mother agreed to accept less in child support arrears than was awarded and offered to accept ongoing child support within a few dollars of the award made by this Court. Given its late date, the Mother’s offer of January 16, 2017 is not helpful to a determination of costs in this case. By that date there was no real benefit to the Father to accept that offer as the parties had already prepared their materials. Also, that offer does not speak to the issue of costs. Therefore, I conclude that the offer dated January 16, 2017 did contemplate that some costs would be paid to the Mother.

14In his submissions, the Father does not take issue with the hourly rate charged or the time spent by the Mother’s lawyer. The Mother points out that she brought the motion, she prepared three affidavits with exhibits and provided a Factum and a Book of Authorities for reference on the motion. In total, the Mother’s lawyer reports having spent 41.8 hours to prepare for and attend at the motion. Also included in the Bill of Costs is a charge of $882.00 for her lawyer’s legal assistant. While I do not question that the legal assistant performed the services shown in the Bill of Costs, they appear to be almost entirely clerical. For that reason, I do not include the costs of the legal assistant in the calculation of the Mother’s costs.

15In the case of Serra v. Serra, 2009 ONCA 359 the Court of Appeal confirmed the costs rules are designed to foster three important principles:

a. to indemnify successful litigants for the costs of litigation; b. to encourage settlement; and c. to discourage and sanction inappropriate behaviour by litigants.

16The Court must also consider proportionality: what is fair and reasonable and proportionate to the proceedings. The Mother obtained an order for retroactive child support in the total amount of $61,893.84. In addition, she obtained an order for monthly ongoing child support, not previously paid, in the amount of $951.44.

17The Mother’s claim for costs, excluding amounts charged by two legal assistants, is $8,360.00, before HST. Given the amount involved and the importance to the Mother to have an order for retroactive and ongoing child support, the amount the Mother seeks in costs is proportionate.

18The Father proposes costs of only $5,000.00. Those submissions also provide some indication of his views on proportionality. However, they are premised on the basis that some leniency or kindness should be shown to him, given his overall financial circumstances. Whatever his current financial situation, the arrears of child support date back to a time when the Father was earning over $100,000 and not paying any, or anywhere close to guideline child support.

Disposition

19I have considered all of the above factors and conclude that the Mother is entitled to costs of the motion fixed in the amount of $8,732.63 inclusive of disbursements and HST.