Court File and Parties

Court File No.: FC-14-00001305-0000 Date: May 8, 2018 Superior Court of Justice - Ontario

Re: Kimberley June Anderson, Applicant And: Roberto DeLuca, Respondent

Before: Justice J. R. McCarthy

Counsel: Sheila L. Bruce, for the Applicant Respondent – Self-Represented

Heard: In Writing

Costs Endorsement

[1] The trial of this application took place over six days. On February 24, 2018, for reasons given orally, I granted much of the relief sought by the Applicant.

[2] The Applicant succeeded in obtaining sole custody of the children, an order for child support (with an accompanying finding of imputed income to the Respondent of $31,000) together with an order for reimbursement of the Respondent’s share of joint expenses of the family residence.

[3] The Applicant was found to be entitled to arrears of child support from December 1, 2015 to the date of trial. In addition, she was awarded a lump sum amount of $22,532 for future child support. These amounts were ordered payable from funds held in trust at the law offices of Evans, deVries, Higgins, representing the balance of the proceeds of disposition of the family residence (“the trust funds”). Finally, the court ordered that the Applicant has the right to take the children out of the country on holidays without the consent of approval of the Respondent.

[4] The Respondent achieved minimal success at trial; the court declined to grant the continuation of a restraining order against him. However, this was entirely because of an existing bail condition which served to accomplish the same thing as the sought after order. The Respondent was also successful in maintaining his existing access with his son MDA. The Respondent failed to obtain any spousal support; failed to obtain an order for shared custody or any order for access with his two unwilling daughters; and failed to satisfy the court that he was in any way disabled from engaging in employment.

[5] The Applicant submitted two offers to settle in the pre-trial period, the latter being October 16, 2017. There is no doubt that the Applicant achieved a trial result greater than was proposed in her two offers to settle. She obtained full custody of the children; achieved orders for payment of joint expenses and for child support greater than the amounts offered; and succeeded in having the court order that the balance of the trust funds remain in place pending a further order. The court tailored access for the Respondent with MDA to account for holidays and long weekends; the access schedule was otherwise identical to the one offered by the Applicant. While it is true that, at the trial proper, the Applicant sought to have the Respondent’s mid-week access eliminated, she was within her rights to do so; the offer to settle remained open until after the start of trial and there was evidence to suggest that the mid-week access was not in the best interest of the minor. No doubt, had the Respondent availed himself of either of the offers, he would have enjoyed the same rights of access with MDA and would have been better off on the property issues; in addition, the parties would have been saved the time and expense of a trial.

[6] Rule 24(1) of the Family Law Rules states that there is a presumption that a successful party is entitled to the costs of a hearing.

[7] Rule 24(11) lists the factors to be considered in setting the amount of costs.

[8] Rule 18 (14) sets out the costs consequences of the failure by one party to accept an offer that is made under that part. A successful party under this rule is presumptively entitled to costs to the date of the offer and full costs from the date of the offer.

[9] The issues at trial were not unduly complex but they were important: the custody arrangements for the three children required finalization; the issue of the Respondent’s disability required determination in order that the claims for child support and spousal support could be properly addressed. The finding of imputed income required consideration of medical information as well as the Respondent’s employment and earnings history. The request for lump sum child support called for a forward looking perspective on the children’s lives.

[10] The Applicant was well-represented; the issues and evidence were presented in an organized, coherent and persuasive fashion. The Applicant’s counsel made the best use of court time both by filing affidavit evidence from independent witnesses and declining to engage in exhaustive and pointless cross-examination of the self-represented Respondent.

[11] On the contrary, the Respondent’s approach to, and participation in, the hearing were concerning. In my reasons, I described the testimony of the Respondent as inconsistent, illogical and almost completely unreliable. I find that, in presenting his case in this fashion, he acted unreasonably. In addition, the Respondent failed to abide by pre-trial court orders to produce tax returns and income information; he neglected to provide evidence of his efforts to seek employment; he declined to furnish the court with updated medical reports; and he did not serve and file an updated financial statement. The complete lack of documentation from Canada Pension Plan and the glaring omissions in the WSIB documentation lead the court to suspect that these undisclosed documents would not have been supportive of the Respondent’s case. The evidence in support of his claim for disability was scanty and highly unreliable; it could not withstand even a modicum of scrutiny. In steadfastly refusing to admit even some earning capacity, such that he could pay some support towards his children’s well-being, I find that the Respondent took an untenable and unreasonable position. Finally, by persisting in his claim for custody, especially of the two teenage daughters who had made it abundantly clear that neither of them wished to even visit with their father, the Respondent wasted valuable court time.

[12] Applicant’s counsel was called to the Bar in 1987. She impressed me as an experienced, knowledgeable and entirely professional advocate who was well prepared, respectful and diligent. I find her proposed rate of $335 per hour to be entirely reasonable.

[13] The time and fees claimed on the Applicant’s bill of costs are generally reasonable, save and except for the entry of October 13, 2017 which sets out 35 hours for “opening statement”. Assuming that this was the opening statement prepared for trial, I cannot conceive of how or why it would have taken 35 hours to prepare. This is either a typographical error or an unnecessary expenditure of time for the preparation of a simple, if helpful, summary of the Applicant’s position at trial. I would reduce that claimed time by 32 hours and allow only 3 hours for the preparation of an opening statement.

[14] I would allow 60% of the fees incurred by the Applicant in the pre-offer period. This is both reasonable and consistent with the conventional approach to partial indemnity costs. I would therefore allow fees up to and including September 11, 2017 (the date of the first offer which was revised but not replaced by the latter offer) in the amount of $14,004.60 plus HST of 13% for a total of $15,825.20.

[15] For the period after September 11, 2017, I would first reduce the claim by the 32 hours identified above. This results in a total of 135.05 hours, which at $335 per hour, amounts to $45,241.75. I would allow this amount in its entirety, not reducing it to any “substantial indemnity” level. The use of the word “full” should be given its ordinary meaning. The HST on the allowed amount for the post offer period is $5,881.43 resulting in a total amount of $51,123.18.

[16] The Applicant has already received the amount of $3,500 inclusive of HST as a result of an order given by Wildman J dated May 11, 2017. That amount should be deducted from the total fees allowed.

[17] I find that the Applicant is entitled to recovery of her fees in the net amount of $63,448.38 inclusive of HST.

[18] The disbursements incurred and claimed by the Applicant are entirely appropriate and reasonable. I would allow the full claimed amount for those disbursements in the amount of $2,432.97.

[19] For the reasons set out above, the Applicant is entitled to her costs of the entire application and trial in the amount of $65,881.35.

[20] It is further ordered that the balance of the trust funds be paid to the Applicant to satisfy a portion of this costs award. The Respondent shall forthwith pay to the Applicant the balance of the costs awarded, after a notional deduction for what would represent his share of the balance of those trust funds. In the event that the parties cannot agree on what that notional deduction should be, I would entertain written submissions from each party limited to two pages, on or before May 31, 2018.

[21] Order to go accordingly.

McCARTHY J

Date: May 8, 2018