Court File and Parties

COURT FILE NO.: 11917/12 (Chatham) DATE: 20180514

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Willow Elizabeth Kelly, Applicant AND: Thomas James Kelly, Respondent

BEFORE: Justice R. Raikes

COUNSEL: Jonathan Quaglia, Counsel, for the Applicant Self-Represented, for the Respondent

HEARD: In Writing

COSTS ENDORSEMENT

[1] This costs endorsement relates to the trial in this matter. The applicant seeks costs of $92,399.43 comprised of partial indemnity fees of $64,273.50, HST on fees of $8,355.55 and disbursements inclusive of HST of $19,770.38. The respondent requests that each side bear their own costs.

[2] There is a presumption that the successful party is entitled to his or her costs of a case: Family Law Rules, r. 24(1). The court can deprive or reduce a successful party’s costs where that party has acted unreasonably: r. 24(4). If success is divided, the court can apportion costs as appropriate: r. 24(6).

[3] In determining the quantum of costs payable, the court shall consider the following factors listed in r. 24(11):

a. The importance, complexity or difficulty of the issues;

b. The reasonableness or unreasonableness of each party’s behaviour in the case;

c. The lawyer’s rates;

d. The time properly spent on the case;

e. Expenses properly paid or payable;

f. Any other relevant matter.

[4] The issues for determination at trial were: child support including s. 7 expenses, spousal support both retroactive and prospective, and equalization. The lion’s share of time at trial concerned equalization and s. 7 expenses.

[5] In closing argument, the applicant advanced the following positions:

a. The respondent owed her $363,817.63 for equalization;

b. She owed him nothing for post-separation adjustments;

c. She owed him $105,521 for child support inclusive of s. 7 expenses to April 30, 2018;

d. He owed her $97,629 for spousal support to April 30, 2018;

e. The net child support owed by her to him after deduction of spousal support should be waived;

f. She should receive ongoing spousal support of $2,396 effective April 20, 2018 on a compensatory and non-compensatory basis;

g. Spousal support should be of indefinite duration or payable as a lump sum in the amount of $123,671 which is the equivalent of eight years spousal support;

h. She should receive prejudgment interest.

[6] Thomas advanced the following positions in closing argument:

a. The respondent owes the applicant $153, 889 for equalization;

b. She owes him $23,118 in post-separation adjustments;

c. She owes him $283,244 for child support inclusive of s. 7 expenses to April 30, 2018;

d. He owes her $15,608 in spousal support to April 30, 2018;

e. She is not entitled to ongoing spousal support.

[7] Following correction for arithmetic errors, the results at trial are:

a. The respondent owes the applicant $374,538.78 for equalization

b. She owes him $3,500 in post-separation adjustments;

c. She owes him $116,056 for child support inclusive of s. 7 expenses to April 30, 2018;

d. Thomas owes her $125,922 for spousal support to April 30, 2018;

e. The difference between spousal and child support owing is not waived;

f. Spousal support is owing on both a compensatory and non-compensatory basis;

g. Ongoing monthly spousal support is payable by him to her in the amount of $1,850 per month indefinitely;

h. The applicant is entitled to prejudgment interest.

[8] Although the respondent was the successful party on some individual items, the applicant was the more successful party on balance. I find that the applicant is entitled to her costs on a partial indemnity basis. I will take the division of success into account on quantum.

[9] With respect to the factors enumerated in r. 24(11), I find as follows:

a. The issues were important to the parties. There was some complexity given the paucity of case law on the appropriate exchange rate to be applied to the U.S. assets;

b. The respondent took some unreasonable positions in respect of child support and s. 7 expenses, (see for example his claim regarding Austin’s tuition and MBA tuition). I had the sense that the respondent simply wanted to minimize the amount payable by him regardless whether the evidence supported his position and whether that position was tenable. By contrast, the positions advanced by the applicant were arguable and reasoned even where unsuccessful;

c. I would be remiss, however, if I did not recognize that the respondent was very well organized. He compiled various charts and tables to assist the court. He was polite and respectful throughout. There were times where he was at a disadvantage because he simply did not appreciate the need for expert evidence or other evidence to bolster or supply the foundation for positions he wished to take;

d. As mentioned, the respondent was partially successful on some items although the results substantially favour the applicant;

e. The hourly rates of applicant’s counsel and his clerk are reasonable for their years of experience;

f. The time spent includes time and work for the case conference and settlement conference. There is no endorsement reserving those costs to the trial judge and according a discount is appropriate;

g. In addition, the draft Bill of Costs includes, inter alia, the motions for the sale of the matrimonial home, the condominium in Florida and time share unit. The order of January 13, 2014 of Thomas J. reserves to the trial judge the costs of the motions. I have considered the time spent for those motions in assessing the quantum payable for costs; and

h. The disbursements are reasonable and appropriate.

[10] I have reviewed the case law provided by applicant’s counsel. The determination of costs is largely fact specific and discretionary. Having regard to the conduct of the parties during the proceeding, the outcome achieved and the factors considered above, I fix the costs payable by the respondent to the applicant at $81,920.43 comprised of

a. Fees: $55,000;

b. HST on fees: $7,150.

c. Disbursements including HST: $19,770.38.

Original signed by Raikes, J.

Justice R. Raikes

Date: May 14, 2018