Haras v. Camp, 2018 ONSC 5077

Court File and Parties

COURT FILE NO.: FS-47823-13 DATE: 2018-08-29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARIETTE MICHELE HARAS Lorrie Stojni, Counsel for the Applicant Applicant

• and -

PHILIPPE ROBERT CAMP Respondent Brian Kelly, Counsel for the Respondent

HEARD: In writing The Honourable Justice C.D. Braid

ADDENDUM TO REASONS

I. OVERVIEW

1Mariette Haras and Philippe Camp were married for 25 years and had three children together. The parties resolved all issues related to parenting and equalization, and a trial proceeded on issues related to support and claims for other compensation.

2For the reasons set out in Haras v. Camp, 2018 ONSC 3456, I determined all of the trial issues. I have now received written submissions with respect to lump sum spousal support and costs.

II. ANALYSIS

A. Lump Sum Spousal Support

3In my Reasons for Judgment, I held that retroactive spousal support shall be set at $75,200 less the notional tax rate. I have now received submissions from the parties regarding the notional tax rate to be applied. I accept that the tax rate of 33.99% ought to be applied. This results in a lump sum retroactive spousal support payment to the wife of $49,639.52.

4The calculation of amounts owing to the wife is as follows:

i. Lump Sum Retroactive Spousal Support: $49,639.52 ii. Lump Sum Retroactive Child Support: $2,646 iii. Credit to Husband for Post-Separation Expenses: ($16,576)

The net payment owing to the wife as a result of the Reasons for Judgment is $35,709.52.

B. Costs

5In this case, there were four relevant offers to settle, none of which was accepted:

i. On April 28, 2017, the wife made an offer that she receive $1,800/month spousal support and slightly more of the equity from the home than the husband (to account for retroactive support). This offer was withdrawn on May 12, 2017. ii. On May 8, 2017, the wife made an offer that set her imputed income at $50,000 and gave up prospective spousal support. This offer was withdrawn on May 12, 2017. iii. On May 12, 2017, the wife made an offer that the parties use their line 150 incomes for support calculation; that the husband would pay spousal support of $1,800/month; and that there would be no arrears of child and spousal support. iv. On May 3, 2017, the husband made an offer that there be no arrears of child and spousal support; that the wife pay $105,000 to the husband for all claims; that the wife’s income be imputed at $50,000 plus $19,200 in spousal support; and that spousal support be paid at $1,600 per month.

6As noted above, the lump sums awarded at trial result in a net payment of $35,709.52 to the wife. The husband was also ordered to pay $3,600/month in ongoing spousal support.

7The husband submits that, when success is divided, no costs should be allowed. However, Rule 24(6) of the Family Law Rules, O. Reg. 114/99, states that if success is divided, the court may apportion costs as appropriate.

8The wife made several attempts to resolve all issues in a reasonable manner. She was successful on almost all substantive issues. The spousal support that was ordered was significantly in excess of her offers to settle. In the circumstances, the wife is entitled to costs.

9The wife seeks substantial indemnity costs in the amount of $132,893.09, inclusive of HST and disbursements. The wife’s Bill of Costs does not set out billing rates. Although it is not clear, it appears that the substantial indemnity amount claimed is actually full indemnity.

10In determining quantum of costs, the court is to consider the factors set out in Rules 18 and 24 of the Family Law Rules, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered these factors.

11I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.

12This was a nine day trial that started in May and finished in December of 2017. At trial, the parties called experts on issues of occupation rent and valuation of the wife’s business. The parties filed document briefs, written submissions, and books of authorities. The factual and legal issues were moderately complex. The issues were highly important to the parties. The two most important factors in fixing costs are the principle of indemnity and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event he was unsuccessful.

13The husband argues that the amount sought by the wife is a form of double billing. While I agree that duplicate costs should not be reimbursed, I received no evidence that the husband paid the costs of the wife’s previous lawyer. The costs paid to the previous counsel are not being sought here. Thus, there is no duplication of work.

14The husband states that his own lawyer’s billings were much lower for the same time period. However, the wife’s counsel was retained less than two months before trial. Within a short time frame, counsel spent many hours becoming familiar with the file and preparing for trial.

15Counsel for the husband has provided his billings for the time period as set out in the wife’s bill of costs. It is unfortunate that he has not provided his billings for the entire retainer period, which would have shown his work on the file over an extended period of time. It is an artificial task to compare the billings of these two lawyers, given the different amounts of time that each had been retained on the file. I am not convinced that the time billed by the wife’s counsel was excessive, especially given the complexity of the factual issues in this case.

16The husband seeks costs of an interim motion regarding the sale of the matrimonial home. At trial, I was unable to conclude that either party deliberately dragged out the process for the sale of the home and was unable to find that one party was more unreasonable than the other. They both contributed to the animosity, which caused the sale of the home to take much longer than it should have. In those circumstances, I decline to order any costs for this interim motion.

17I have reviewed the detailed Bill of Costs of the wife and the written submissions of the parties. I am satisfied that the amount of time expended is reasonable and proportionate to the issues raised in these proceedings. I find that a fair and reasonable award of costs is $90,000, inclusive of HST and disbursements.

III. CONCLUSION

18Paragraph 14 of the Order in my Reasons for Judgment dated June 22, 2018, shall be replaced by the following:

14. The Respondent Husband shall pay to the Applicant Wife the sum of $2,646 in retroactive child support and the sum of $75,200 in retroactive spousal support, from September 1, 2014, to June 30, 2018. The lump sum retroactive spousal support owing is $49,639.52 after being adjusted for tax purposes.

19Paragraph 22 of the Order in the Reasons for Judgment dated June 22, 2018, shall be replaced by the following:

22. The reimbursement of expenses owing to the Respondent Husband shall be set off against the retroactive child and spousal support owing to the Applicant Wife. The net amount of $35,709.52 shall be paid to the Applicant Wife from the Respondent Husband’s share of the proceeds of the sale of the matrimonial home currently held in trust.

23. In addition, $90,000 in costs shall be paid to the Applicant Wife from the Respondent Husband’s share of the proceeds of the sale of the matrimonial home currently held in trust.

24. Once these payments have been made to the Applicant Wife, the parties shall be paid their remaining share of the proceeds of the sale of the matrimonial home.

Braid, J.