Court File and Parties
COURT FILE NO.: FC-16-1781 DATE: 2018/08/24 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Pierre Menard Applicant – and – Angela Jodoin Feres Respondent
Counsel: Self-Represented (for the Applicant) Alice Weatherston, for the Respondent
HEARD: In Writing
Endorsement On Costs
ENGELKING J.
[1] On February 26, 2018, my Reasons for Decision on the within matter were released ( Menard v. Jodoin Feres, 2018 ONSC 1320). On April 6, 2018 an additional endorsement was released to correct an error with respect to the interpretation of the statement of outstanding arrears of the Family Responsibility Office (Menard v. Jodoin Feres, 2018 ONSC 2228). At the end of the day, I found that Mr. Menard owes Ms. Jodoin Feres $29,148.43 in child support arrears.
[2] In the February 26, 2018 decision, I invited submissions on costs in writing in the event that the parties were unable to agree on liability for same. I have received submissions from both parties. This is my decision on costs on Mr. Menard’s Motion to Change.
[3] Ms. Jodoin Feres is seeking costs on a full indemnity basis, with some reductions, on the basis that she proffered two offers to settle, both of which were more favourable to Mr. Menard than was the outcome of the Motion to Change. Ms. Jodoin Feres’ first Offer to Settle was made on January 31, 2017, prior to the case conference, and was for Mr. Menard to pay her $18,500 for child support arrears, payable within 60 days, or for arrears to be set at $26,030 if not paid within 60 days, to be enforced by FRO with payments of $750 per month towards the arrears. Mr. Menard did not accept this offer. It was more favourable to Mr. Menard than the outcome of the motion.
[4] Ms. Jodoin Feres second Offer to Settle was made on August 24, 2017 and was for Mr. Menard to pay $17,000 in arrears by October 9, 2017. This offer was only open for acceptance until October 13, 2017, and not to the date of the motion. Mr. Menard did not accept this offer. It was also more favourable to Mr. Menard than the outcome of the motion.
[5] Mr. Menard also made an offer to Ms. Jodoin Feres on June 5, 2017, through his former counsel, for him to pay Ms. Jodoin Feres $14,000 for all arrears of child support owing. Ms. Jodoin Feres did not accept this offer on the basis that she had already incurred significant legal costs, and on the basis that Mr. Menard was to be given eight months to pay the arrears. This offer was far less favourable to Ms. Jodoin Feres than was the outcome of the motion.
[6] Mr. Menard takes the position that he offered Ms. Jodoin Feres $20,000 by email dated May 22, 2009, by stating “you [Ms Jodoin Feres] $10,000 matt $5000 and jay $5000.”. Ms. Jodoin Feres disputes this, stating that in questioning Mr. Menard clarified that he meant a total of $10,000, and not $10,000 for her and $5,000 for each of the children. In any event, significant arrears accrued from 2009 until Matthew and Jason ceased to fit the definition of children of the marriage. An offer of $20,000 (or $10,000 as the case may be) made to clear up arrears in 2009, would not attend to the additional arrears which accumulated after that date, and cannot be relied upon as an offer for the purposes of litigation in 2017.
[7] Ms. Jodoin Feres was clearly the successful party in the Motion, and she is presumptively entitled to an order of costs. The issue was not particularly complex, in that Mr. Menard was subject to court orders for child support, which he neither complied with nor brought steps to change in the operative years. However, it was of import to the parties.
[8] Mr. Menard acted for himself and was not an organized litigant. He had many loose documents and receipts, which he alleged demonstrated something, but which were ultimately not reliable. His lack of organized disclosure created challenges for Ms. Jodoin Menard, and increased the cost of the litigation, as her counsel had to attempt to respond to such documents as they came. His behaviour in this regard was somewhat unreasonable.
[9] Ms. Jodoin Feres’ counsel’s rates of $250 to $280 per hour were reasonable for a 2012 call. Her request in relation to time spent on the file is also reasonable in that she has reduced it to account for the costs already awarded at the November 4, 2017 appearance, and by the April 4, 2018 appearance, and her appearance at the motion of Mr. Menard’s former counsel to be removed from the record.
[10] Pursuant to Rule 18(14) of the Family Law Rules, a party is entitled to costs on a full recovery basis from the date of an offer to settle if it was made at least one day before the motion, it does not expire and is not withdrawn before the hearing starts, it was not accepted and the party who made it obtains an order that is as favourable as or more favourable than the offer. Ms. Jodoin Feres’ offer of January 31, 2017, fulfills all of that criteria. Thus, Ms. Jodoin Feres is entitled to costs from that date on a full recovery basis. Ms. Jodoin Feres notes that her actual costs on the Motion were $24,417.93, but that she is seeking an order for $20,946.46 to account for the reductions outlined in paragraph 9 above.
Order
[11] For all of the reasons stated above, there shall be an order as follows:
- The Applicant shall pay the Respondents costs in the sum of $20,946.46;
- The costs shall be payable from the proceeds of sale being held with Patrice Provost in accordance with the Minutes of Settlement dated January 31, 2018. Any remaining costs owed shall be enforceable as support by the Director, Family Responsibility Office;
- This order bears interest at the postjudgment interest rate of _____per cent per year effective from the date of this order. A payment in default bears interest only from the date of default.
- Unless the order is withdrawn from the office of the Director, Family Responsibility, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.