CITATION: Bloom v. Bloom, 2017 ONSC 5538
COURT FILE NO.: FC-16-2654-0
DATE: 2017/09/19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Lisa Bloom, Applicant
AND
Robert Nicholas Bloom, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Michael Rappaport, Counsel for the Applicant
John E. Summers, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
[1] On July 25, 2017, the Court made the following interim order:
− Commencing July 1, 2017, Mr. Bloom will pay child support in the amount of $1,478 per month based on an income of $121,000 per annum and an income imputed to Mrs. Bloom of $15,000 per annum;
− Commencing July 1, 2017, Mr. Bloom will pay spousal support in the amount of $1,695 per month based on an imputed income to Mrs. Bloom of $15,000. This may be adjusted when she finds employment; and
− The issue of retroactive support is reserved to the trial Judge.
[2] If the parties were unable to agree on the issues of costs, they were to provide the Court with their two-page written submissions.
[3] Having considered the parties’ written submissions, the offers to settle, the Bill of Costs, and the Family Law Rules, O. Reg. 114/99 (the “FLRs”), the Court declines to order costs.
Applicant’s Position
[4] Firstly, despite the fact that contrary to my instruction, the Applicant forwarded four pages of written submissions instead of two pages, the Court will, on this occasion, fully consider the submissions.
[5] The Applicant submits that she was the successful party on the motion for support. His account shows total fees and disbursements of $9,453.59.
[6] She is claiming costs for the attendances on June 8, 2017 where an adjournment was granted and the hearing of the interim support motion on July 21, 2017.
[7] The Applicant states that the Respondent only provided confirmation of his income three days before the motion despite being ordered by two Court Orders to provide his salary details.
[8] A month before the motion, the Respondent served an offer to settle in which he sought to impute income of $30,000 per year to the Applicant.
[9] The Court adjourned the motion originally scheduled on June 5, 2017 (which had been set on consent in March 2017) as the Respondent required time to respond to the lengthy affidavit of the Applicant that had just been served.
[10] Her offer to settle dated May 2, 2017 (not signed by the client in accordance with the FLRs), provided for $1,643 per month for child support based on $121,058 per annum and $2,908 per month as spousal support commencing May 1, 2017.
[11] On July 18, 2017, another offer to settle was served by the Respondent three days before the motion, which required that the Applicant had to agree to an imputed income of $30,000 per year by August 2018. The Applicant had been a stay at home mother for 11 year years and had some health issues and submits that she could not accept the offer to settle.
[12] The Respondent’s offer to settle dated May 5, 2017 offered $1,235 per month for child support based on an imputed income of $30,000 per year and $1,253 per month for spousal support.
[13] The Respondent’s offer to settle dated July 18, 2017 provided that commencing June 1, 2017, child support in the amount of $1,673 per month and commencing January 1, 2018 $1,478 per month for child support based on an imputed income of $15,000 per annum using the set-off approach. Commencing June 1, 2017 spousal support was payable at $1,997 per month and commencing January 1, 2018, spousal support was payable at $1,478 per month based on an imputed income of $15,000 per year.
[14] In August, 2018, spousal support would be reviewed but with a minimum imputed income of $30,000 per year to the Applicant.
Respondent’s position
[15] The Respondent submits that he was the successful party on the three appearances: there was no retroactive support, he was successful on the request for the adjournment and the Court ruled that the children should be with their parents on an equal basis. In addition, his offer to settle dated July 18, 2017 offered immediate support higher than what was ordered by the Court.
[16] Entitlement to spousal support was not an issue. The Applicant was seeking an amount of spousal support that was inappropriately high.
[17] He is claiming $6,085.10 for the costs of the motion for support, $750 for the costs of the adjournment motion and $6,169.80 for the motion for the return of the children. He submits that he was successful on all of these motions.
Legal Principles
[18] Rule 24 of the FLRs states that there is a presumption that the successful party is entitled to costs.
[19] The cost rules are designed to the fundamental purposes:
(1)indemnifying 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.
Fong v. Chan 1999 2052 (ON CA), [1999] O.J. No. 4600 and confirmed in Serra v. Serra [2009] ONCA 395.
[20] Rule 18 deals with the cost consequences of failure to accept an offer, and allows the Court discretion to take into account any written offer to settle, the date it was made and its terms.
Analysis
Who was the successful party?
- Motion for return of the child on March 3, 2017
[21] The Court finds that the major issue was the return of the children and the Respondent was successful in obtaining the return of the children to a shared custody arrangement. I reserved the issue of costs to the motion’s Judge hearing this motion. The parties are awaiting the results of the custody/access assessment. Therefore this issue of costs will be dealt with at the time of the return of the motion dealing with custody and access.
- Adjournment of Motion on June 8, 2017
[22] The Respondent was successful in obtaining an adjournment of the motion. However, the Applicant offered to provide a consent to late filing and this was declined. If the adjournment had been provided on consent, then they would have had to wait several months for an interim support motion. Had the parties agreed to the adjournment, as the Judge seized with this matter, the Court would have considered earlier dates.
- Motion dealing with support
[23] The Respondent’s offer to settle comes closest to the Court’s final decision on this issue. However, the Applicant was reasonable in not wishing to accept the term that income would be imputed to her in the amount of $30,000 in August 2018, regardless of her employment income.
[24] In considering the factors set out in 24(11), I have considered the following:
The importance, complexity and difficulty of the issues:
[25] The issues were not complex but were important to both parties as the right to child support, spousal support and the obligation to pay are important issues in order to meet the child’s needs and those of the unemployed mother. At the time of the motion, the Applicant was residing with her mother and was not able to rent an apartment without an appropriate level of support.
The reasonableness or unreasonableness of each party’s behaviour in the case:
[26] The Court finds that the Respondent’s lack of financial confirmation of his income until 3 days before the motion was unreasonable. The Court Order dated February 24, 2017 required him to disclose his salary, bonuses, and benefits from his new employer, Ford Motor Canada. The letter dated January 18, 2017, was only provided to the Applicant on July 18, 2017 three days before the motion. This conduct is not within the spirit and letter of the FLRs that there should be compliance with Court Orders and timely financial disclosure.
[27] The Applicant also alleges that the Respondent has been tardy in producing his Affidavit of documents pursuant to the Court Order dated February 24, 2017 and has not provided his bank, investment and credit card statement from two years prior to the September 11, 2016 date of separation and the details of his $600,000 inheritance.
[28] For the purposes of this motion, the Court’s main concern was the issue of the income of the parties. The alleged lack of disclosure of other documentation is not before me but may be an issue for the Trial Judge
The lawyers’ rates and the time spent on the motion, in light of the various issues and case law were reasonable.
[29] The Applicant’s lawyer’s call to the bar is 2008 and his hourly rate of $225 per month is reasonable. The Respondent’s lawyer was called to the Bar in 1999 and his rate of $325 per hour is reasonable. I find both parties’ bill of costs reasonable.
[30] As per Johnstone v. Locke 2012, ONSC, 1717, the success assessment should be made in relation to the pleadings and relief sought at trial. Therefore, even though the Respondent denied the Applicant’s entitlement to spousal support in his Answer and claimed child support, at the motion, he conceded her entitlement to spousal support.
[31] There will no costs awarded for the adjournment. It is true that the Respondent could have prepared an affidavit and the Applicant was prepared to consent to late filing.
[32] The Court will not grant costs of the motion for support as the Respondent’s offer to settle providing a caveat that she must impute income at $30,000 per year commencing August 1, 2018, was not reasonable to accept.
[33] In addition, the Court finds that the Respondent was unreasonable in waiting to confirm his income with his new employer until three days before the motion. The letter confirming his income was dated almost 6 months earlier. He had been ordered on two previous occasions to provide this income confirmation.
[34] Accordingly, there will be no costs awarded.
[34]
Justice A. Doyle
Date: 2017/09/19
CITATION: Bloom v. Bloom, 2017 ONSC 5538
COURT FILE NO.: FC-16-2654-0
DATE: 2017/09/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anna Lisa Bloom, Applicant
AND
Robert Nicholas Bloom, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Michael Rappaport, Counsel for the Applicant
John E. Summers, Counsel for the Respondent
HEARD: July 21, 2017
ENDORSEMENT ON COSTS
Justice A. Doyle
Released: 2017/09/19