CITATION: Deslauriers v. Pommainville, 2017 ONSC 4212
COURT FILE NO.: FC-11-003-2
DATE: 2017/07/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sophie Deslauriers, Applicant
AND
Eric Pommainville, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Self-represented
Christian Pilon, Counsel for the Respondent
HEARD: In Writing
ENDORSEMENT ON COSTS
[1] After a motion, the Court ordered the following on June 7, 2017:
− the Divorce Order of Justice Parfett dated January 8, 2013 is varied as follows:
− commencing June 1, 2015, the father will pay child support in the amount of $963 per month;
− commencing June 1, 2016, the father will pay child support in the amount of $1,765 per month;
− the parties will share s. 7 expenses in proportion to their respective incomes for the following: daycare expenses and health/dental premiums and RESP; and.
− all the other terms of the Divorce Order remain in full force and effect.
[2] If the parties were unable to agree on the issue of costs, they were to provide me with written submissions.
[3] For the reasons set out below and after having considered the parties’ submissions, the Family Law Rules, O. Reg. 114/99 (the “FLRs”), offers to settle and the bills of costs, the Applicant is awarded costs in the amount of $532.
Applicant’s position
[4] The Applicant submits that she has been the successful party and claims the amount of $2,730 in costs.
[5] She states that the Respondent was unreasonable in not providing the appropriate amount of child support based on his total income. His position was that he should pay the set off amount based the cap of $150,000 per annum in accordance with s. 4 of the Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”).
[6] Her offer was contained in an email dated August 30, 2016 offering $963 per month from June 1, 2015 and $1,765 per month for June 1, 2016. She also asked for pro rata share of other expenses including medical expenses not covered by any health plan, RESP, winter coat and winter boots, daycare, school supplies and activities, along with an increase of life insurance policy to $645,848.
[7] This offer was repeated in an email to the Respondent’s counsel on March 3, 2017.
[8] In her email dated November 11, 2016, she offered $1,500 per month as of June 1, 2016
Respondent’s position
[9] The Respondent submits that success was divided as the Applicant was not successful in obtaining reimbursement of s. 7 expenses and an increase of the face amount of the life insurance policy. He was also reasonable in attempting to negotiate a fair amount of child support pending the motion.
[10] On August 24, 2016 he sent an email offering to pay child support in the amount $1,000 per month commencing June 1, 2015 and pay for all of the daycare costs.
Legal Principles
[11] Rule 24(1) of the FLRs states that there is a presumption that a successful party is entitled to costs.
[12] The costs rules are designed to foster three fundamental purposes:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
See Serra v. Serra [2009] ONCA 395.
Analysis
Success of the parties
[13] Although the Applicant was not successful in obtaining s.7 reimbursement or an increase in the face amount of the life insurance policy, she was successful on the main issue of the motion, namely what income should be used for the determination of child support.
[14] The Court did not find that the Respondent paying child support based on his total income was inappropriate and hence, the Court did not cap his income at $150,000 per annum. Most of the time and effort at the motion dealt with this issue.
[15] In determining the set off amount based on a shared parenting regime, the Court used his full 2014 income of $206,463 and 2015 income of $322,000. The Court ruled against him on this main issue and hence the Applicant should be entitled to costs.
Quantum of Costs
[16] In determining the quantum of costs the Court shall consider the following factors set out in Rule 24(11).
(a) Importance, complexity and difficulty of the issues
[17] The issues were not complex as parties were using their Line 150 incomes. However, the issue of child support is obviously an important issue to the parties and to the children.
(b) the reasonableness or unreasonableness of each party’s behaviour in the case
[18] I do not find that either party was unreasonable. Both parties made numerous efforts to attempt to resolve matters. The Respondent was entitled to pay $211 per month as per the Divorce Order as a clause provided that amount to be paid if the parties could not agree on the quantum.
[19] Although both parties exchanged offers in emails and pursuant to Rule 18(16), the Court can consider them even though they did not meet the Rule 18 offers to settle criteria (i.e. signed personally by the parties).
(c) time spent on the case by lawyer
[20] The Applicant was not represented by counsel and she did not claim any legal fees expended.
(d) expense properly paid or payable
[21] She submits a bill of costs. Her costs include documents from Staples in the amount of $275 which is a disbursement. This disbursement is acceptable.
[22] The Court will permit only 3 parking fees for filing of the motion and reply, and attendance at the motion at $12 per visit for a total amount of $36. The Court will not consider expenses prior to this final step as costs must be decided each step of the way as per Rule 24(10).
[23] Interest payable on a Line of credit to offset child’s expenses is not a proper expense.
[24] The process server fee of $240 is a reasonable expense
[25] The Court will permit mileage at $27 per trip for 3 trips, for a total of $81.
[26] No invoices were submitted for babysitting while at Court. In addition, the Court questions whether these are proper expenses.
[27] Therefore the total amount of costs equals $632.
[28] After my decision was rendered, the Respondent offered to pay the Applicant costs in the amount of $1,000. This was a reasonable offer that should have been considered by the Applicant.
[29] Therefore, from the costs of $632, the Court will deduct $100 to represent a reimbursement of some of the Respondent’s legal expense in preparation of his costs’ submissions.
[30] Given the above, the Court finds a fair and reasonable amount for costs to be awarded to the Applicant is $532.
Justice A. Doyle
Date: 2017/07/07
CITATION: Deslauriers v. Pommainville, 2017 ONSC 4212
COURT FILE NO.: FC-11-003-2
DATE: 2017/07/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sophie Deslauriers, Applicant
AND
Eric Pommainville, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Self-represented
Christian Pilon, Counsel for the Respondent
HEARD: In Writing
ENDORSEMENT ON COSTS
Justice A. Doyle
Released: 2017/07/07