COURT FILE NO.: FS-17-00420436-00
DATE: 20181127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEWA PATANG
Applicant
– and –
AKMAL MIRAL
Respondent
Jeff Rechtshaffen for the Applicant
Gary Joseph for the Respondent
HEARD: October 25, 2018
C. Gilmore, J.
RULING ON costs
OVERVIEW
[1] This motion for interim spousal and child support and interim disbursements came before me October 25, 2018. The decision was released on October 26, 2018. The parties were requested to provide written costs submissions which have now been received.
[2] The applicant sought temporary child support of $2,739 per month and temporary spousal support of $9,071 per month based on an imputed income to the respondent of $350,000 retroactive to January 1, 2018. The applicant also sought to have the respondent continue to pay all household related third party expenses.
[3] The court imputed income to the respondent of $120,000. He was required to pay child support of $1,068 per month and spousal support of $2,000 per month commencing November 1, 2018. The respondent was also required to pay third party expenses related to the home in the net amount of $9,850.67 per month. He is to receive a monthly credit of $5,746.17 for the applicant’s share of those expenses.
[4] The issue interim disbursements was resolved during the court of submissions when the respondent offered to consent to a $100,000 line of credit being placed against the matrimonial home to fund the applicant’s legal and expert fees. The respondent is required to pay the monthly line of credit payments.
The Parties’ Positions
[5] The applicant submits that the respondent was successful but did not act reasonably. The applicant seeks costs of $5,000.
[6] The respondent submits he was entirely successful and requests partial recovery costs in the amount of $9,000. The respondent further submits that the applicant was unsuccessful on both the quantum and duration of support (support was ordered to commence November 1, 2018 and not January 1, 2018 as requested), the interim disbursements issue, and she failed to provide a proper Bill of Costs.
The Offers to Settle
[7] Keeping in mind this motion was originally returnable on July 17, 2018, the applicant served an Offer to Settle dated July 10, 2018 as follows:
a. Without prejudice child support of $2,500 per month commencing June 1, 2018;
b. Without prejudice spousal support of $7,000 per month commencing June 1, 2018;
c. Interim disbursements of $60,000 payable to the applicant forthwith;
d. The parties to jointly retain a business valuator to value the respondent’s income and businesses.
e. The respondent to pay the up-front cost of the valuations but the applicant would ultimately be responsible for half of the cost of the income valuation.
f. Significant outstanding disclosure was to be provided by August 15, 2018.
g. The Offer was open for acceptance without cost consequences until July 12, 2018.
[8] The respondent served an Offer to Settle dated July 16, 2018 as follows:
a. He would pay the applicant $5,000 per month spousal support and $1,068 in child support.
b. The child’s extraordinary expenses would be shared based on the applicant’s income at $88,000 and the respondent’s at $120,000.
c. The respondent to retain a chartered business valuator to conduct an analysis of his income and pay the up-front cost of same. The cost of the valuation to be considered in the overall costs determination at trial.
d. The respondent to deliver any outstanding disclosure by August 15, 2018.
e. The issue of retaining a chartered business valuator to value the respondent’s businesses to be adjourned without prejudice.
f. The Offer was severable and open for acceptance without cost consequences until one minute after the commencement of the motion returnable on July 17, 2018.
[9] The respondent made a further Offer to Settle dated October 24, 2018 but clarified that the respondent would make no contribution to household expenses.
[10] Neither of the parties’ original Offers made any mention of household expenses.
[11] On August 2, 2018 the applicant accepted the respondent’s July 16, 2018 Offer. The respondent advised that the Offer was no longer open for acceptance as the July 17, 2018 motion did not proceed. The applicant’s position was that the motion had simply been adjourned and that the Offer should therefore still be open for acceptance.
Analysis and Orders
[12] Both parties agree that the respondent was successful on the motion. Costs in favour of the respondent would therefore be presumed in accordance with Rule 24(1) of the Family Law Rules.
[13] However, in this case, there are factors which temper the presumption that the respondent is entitled to costs.
[14] First, I do not think that the respondent can consider the resolution of the interim disbursements issue to be in his favour with respect to costs. The possibility of a line of credit registered against the matrimonial home was suggested by the respondent only at the argument of the motion. The respondent was aware of the applicant’s intention to bring a motion for disbursements as far back as early June 2018. No mention was ever made of resolving the matter in this manner by the respondent prior to the motion.
[15] The first time that the applicant became aware that the respondent was in the process of obtaining an income analysis was during the course of his counsel’s submissions at the motion. Had the applicant known this, it may well have affected how she proceeded including, an agreement to adjourn the motion pending the production of the report or no motion at all. It was unreasonable for the respondent to withhold this critical information in the face of an upcoming support motion.
[16] The lack of an income analysis also left the court in a difficult position with no objective or substantive information about the respondent’s income. Indeed, the respondent’s financial statement disclosed an income of $120,000 which was not supported by either his Income Tax Returns or his bank statements, but was the income he deposed was correct.
[17] The respondent’s Offer of October 24, 2018 was not reasonable. The applicant could not have paid the household expenses and supported herself and the child on $6,000 per month. The respondent, who has been paying the household expenses, was well aware that the mortgage payment alone was $6400 per month. Further, part of the Offer included the applicant withdrawing her motion in exchange for the respondent providing disclosure he had already been ordered to produce in January 2018.
[18] I agree with the applicant’s submission that the result of the motion for the applicant was better than if she had accepted either of the respondent’s Offers. On a pure numbers analysis, she did better than her own Offer as well, given that the third party payments are net payments.
[19] The applicant has not provided a Bill of Costs. A Bill of Costs should be provided in all costs submissions, but it is particularly important where the submissions are in writing.
[20] In all the circumstances, I award costs of $3000 in favour of the applicant.
C. Gilmore, J.
Released: November 27, 2018
COURT FILE NO.: FS-17-00420436-00
DATE: 20181027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEWA PATANG
Applicant
– and –
AKMAL MIRAL
Respondent
RULING ON MOTION
C. Gilmore, J.
Released: November 27, 2018