ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARC BIBEAU
Applicant
– and –
GENEVIEVE BIBEAU
Respondent
T. Frederick Baxter, for the Applicant
John Paul Paciocco, for the Respondent
HEARD: Written submissions/August 21, 2017
MCMILLAN J.
COSTS ENDORSEMENT
BACKGROUND
1Underlying this proceeding since 2012 has been the contentious issue of guideline child support for the parties’ daughter, Sarah Bibeau, born September 26, 1995.
2The applicant father’s refusal or reluctance to pay child support for the daughter prompted the respondent mother to move for an order requiring the applicant to do so.
3By an interim order dated January 6, 2014, I determined that the father was to pay child support for Sarah. A final order issued following a trial before Varpio J. on October 20, 2014, but did not contain a provision requiring the applicant father to pay ongoing child support.
4The respondent successfully appealed the trial decision. By order dated November 17, 2015, the Divisional Court found that the applicant was to pay ongoing child support for Sarah fixed in the sum of $641.91 per month, plus substantial arrears and costs of $8,000.
5The applicant sought leave to appeal that order by motion filed December 2, 2015, alleging eight reviewable errors. On March 11, 2016, the Ontario Court of Appeal, sitting as a panel of three, dismissed the motion for leave to appeal and fixed costs against the applicant at $9,750.
6Approximately five weeks later, by motion to change issued April 25, 2016, the applicant sought to terminate the Divisional Court order and replace it with an obligation that he pay $1.00 per month, effective October 1, 2013, and claiming punitive or aggravated damages of $10,000 based on alleged “inappropriate conduct and sharp practice...including but not limited to the withholding of relevant information”.
7The motion to change was predicated upon an alleged material change in circumstances concerning Sarah’s enrolment in a post-secondary program of study at Fanshawe College in London, Ontario. The grounds for material change was acknowledged by opposing counsel and the significant issue was that of Sarah’s dependency to establish that she continued to be a child of the marriage.
8Before the applicant’s motion to change was heard, the respondent moved to strike or stay that motion pending compliance with the orders of the Divisional Court and Court of Appeal requiring payment of $41,577.19. The respondent was successful and on August 26, 2016, Kurke J. ordered the applicant to pay all amounts ordered by the appellate courts as well as costs fixed at $4,250.00 on the motion before him. The applicant was also prevented from bringing any other related motions. Failing compliance, his motion to change was dismissed. Justice Kurke observed that based on the applicant’s own affidavit material, it was “very clear that the driving force in his dealings about child support for his daughter Sarah has been a desire to avoid paying”. By January 23, 2017, the applicant had paid all outstanding amounts and was given leave to proceed with his motion to change.
9The appellant’s motion came on before me for hearing on July 13, 2017, and for reasons released July 26, 2017, the applicant’s motion to change was denied and his guideline child support obligation for Sarah remains fixed at $641.19 per month pending the completion of her current program of studies.
COSTS RULING
10Counsel were unable to reach a consensus regarding costs herein and filed written submissions and were permitted as well to make oral submissions on August 21, 2017.
11Counsel for the applicant made general and vague submissions that were again focused on the impropriety of the appellate courts’ decisions which I had previously addressed on the motion and in my reasons. Mr. Baxter did not present a bill of costs on behalf of the applicant nor did he provide dockets. He alleges, again with generality, that the rates charged by respondent’s counsel are too high as Mr. Baxter charges a very modest hourly rate to his clients. He maintains that Mr. Paciocco’s bill of costs, either on a partial indemnity or full indemnity scale, are simply “too high” without articulating any sound basis for his contention.
12Mr. Baxter submits that Kurke J. reduced the respondent’s bill of costs by approximately one-third on the motion before him and that I should be governed accordingly. Costs are in the discretion of the presiding justice, guided by Rule 24(1) Family Law Rules, and I am not bound by whatever approach another colleague may have taken. Mr. Baxter suggests that if the respondent is to be awarded costs, the sum of $7,000 should suffice.
13The issue was not complex but was certainly of importance to both parties. When considering offers to settle, it is clear that the respondent was by far the most reasonable. The applicant served eight affidavits in this matter. He maligned the respondent, accusing her of deceit and misleading the court by failing to disclose and for which he claimed punitive or aggravated damages that he did not prove. He was claiming over $57,000 from the respondent.
14He caused Sarah emotional distress by perpetuating five years of litigation; a clear example of his unreasonableness throughout. Child support guideline or table amounts were intended to simplify the determination of child support and to avoid this type of litigation.
15Of great significance in arriving at a determination of costs are two factors: the respondent was entirely successful, including her character vindications; and, a comparison of the two written offers.
16In her offer to settle, dated March 28, 2017, which was never accepted, the respondent was prepared to receive child support of $500.00 per month with all other claims being dismissed without costs and each party was to bear their own costs. The respondent ultimately obtained an order more favourable than her Offer to Settle.
17In his Offer to Settle, dated May 15, 2017, the applicant required that Sarah be found not to be a child of the marriage entitled to support as of May 31, 2016; a refund of child support of $10,912.47; reimbursement of an over payment of arrears of child support of $5,637.02; costs of $1,500.00; and mutual releases. The offer again demonstrated the extent of the unreasonableness of the applicant given the outcome of the litigation.
18Having regard to the foregoing, I do not find any justification for not awarding costs to the respondent, the successful party, in keeping with that settled presumption. The respondent has not behaved unreasonably in this matter. Contrary to Mr. Baxter’s general assertion that the respondent’s counsel’s rates are excessive and absent any principled reasoning therefore, I accept the respondent’s counsel’s bill of costs. There is not any divided success in this matter.
19I am then left to determine which scale is most appropriate and the terms of payment. Considering the applicant’s failure to accept the respondent’s more favourable offer to settle, full indemnity from the date of service thereof could be awarded. However, while the child support provision in the respondent’s offer provides for a termination date of April 30, 2019, it is unconditional in respect to Sarah’s successful continuation in her current program of study at Fanshawe College. Accordingly, I am limiting the award of costs to $18,410 on a partial recovery basis.
20Mr. Baxter submits that the court should extend lenient terms of payment to his client, the applicant. The justification offered is that he will once again be required to obtain financing to fulfill the obligation to satisfy the costs if payable forthwith or within 30 days.
21Mr. Paciocco counters with the submission that his client, the respondent, ought not to have to bear the financing costs attributable to Mr. Bibeau’s folly or unreasonableness. Mr. Baxter acknowledges that Mr. Bibeau has annual income of $75,000. Further, Mr. Bibeau has an investment asset with the Toronto Dominion Bank valued at $26,700 based on his sworn financial statement.
22There is not any justification for denying the respondent the payment and recovery of her costs forthwith. Accordingly, costs fixed in the amount of $18,410 on a partial recovery scale are awarded to the respondent and payable by the applicant within 30 days of this date.
McMillan J.
Released: September 6, 2017
CITATION: Bibeau v. Bibeau, 2017 ONSC 5294
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARC BIBEAU
- and –
GENEVIEVE BIBEAU
COSTS ENDORSEMENT
McMillan J.
Released: September 6, 2017