Court File and Parties

COURT FILE NO.: D26143/14 DATE: 2019/04/04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sarah Stoughton Applicant

Anne Marie DiSanto, for the Applicant

• and -

Jessica O’Ney Respondent

Jolanta Bula, for the Respondent

The Honourable Justice D.L. Edwards

COSTS ENDORSEMENT

[1] A 10 day trial was scheduled before me. On the eve of trial, the parties settled all property issues, as well as the vacation parenting schedule. That left the issues of custody, primary residence, child support, and location of schooling of the parties’ child to be dealt with at trial.

[2] Following the trial, I ordered custody and primary residence of the child to the Applicant. I made an order for access in favour of the Respondent. Further, I ordered that the Respondent pay child support to the Applicant.

[3] I asked for and received cost submissions. This is my cost endorsement. As well, I will deal with certain ancillary issues.

[4] The Applicant seeks a cost award of $29,742.32. The Respondent submits that there should be no cost award.

[5] The Applicant served an Offer to Settle dated February 12, 2019, which remained open for acceptance until five minutes prior to the commencement of the trial on February 10, 2019.

[6] The Respondent served an Offer to Settle dated October 29, 2018, that was open for acceptance until November 1, 2018.

[7] Both Offers to Settle had therefore expired by the time the trial commenced.

Law

[8] The applicable provisions for the exercise of my discretion include, s.131 of the Courts of Justice Act, and Rules 18 and 24 of the Family Law Rules.

[9] The Court of Appeal has confirmed that cost rules are premised upon three important principles:

a) To partially indemnity successful litigants for the cost of litigation; b) To encourage settlement; and c) To discourage and sanction inappropriate behaviour by litigants.

Analysis

[10] I am satisfied that the Applicant was the successful party in this litigation.

[11] I find that both Offers to Settle had expired and therefore not relevant to the determination of costs.

[12] I find that the issues were not overly complex, but they were difficult, as the determination as to schooling and primary residence were not capable of easy resolution.

[13] I also find that the Respondent’s conduct and the Applicant’s conduct were both reasonable.

[14] I can appreciate that the Respondent’s income is not large, but in light of the Applicant’s success, the Applicant is entitled to a cost award.

[15] I find that the hours spent, and the hourly rate of the Applicant are reasonable.

[16] I find that there is no reason that the cost award should be other than on a partial indemnity basis.

[17] In all of these circumstances, I find that the Applicant is entitled to costs on a partial indemnity basis.

[18] I order that the Respondent pay to the Applicant costs on a partial indemnity basis of $19,000 inclusive of HST.

[19] The Applicant’s counsel asks that I order that these costs be enforceable by the Family Responsibility Office (“FRO”). She submits that her costs can be attributable to child support.

[20] However, I am satisfied that only a very small portion of the trial involved child support, and therefore I decline to attribute any portion of the costs to the support claim.

Child Support

[21] In my decision I had asked that the parties provide written submissions to me within 30 days if they could not agree upon the quantum of the child support to be paid by the Respondent to the Applicant.

[22] Although the 30 days has not expired, it is clear that the parties are unable to reach agreement on this issue as they have provided in their cost submissions detailed submissions on this issue. I am, therefore, in a position to make a ruling on this issue.

[23] During the trial the Respondent testified that she earned between $150 and $250 US per night shift on tips and that she worked two shifts per week. The Respondent’s 2018 W-2 form shows that for “Wages, tips, other comp.” she earned $11,032.25.

[24] I find that it is more realistic to determine that the Respondent earned $20,800 US in 2018.

[25] Both parties agree to using the Bank of Canada exchange rate of $1.00 US equals $1.34 Cdn. Therefore, for child support purposes, I deem the Respondent’s income for 2018 to be $27,889.40 Cdn.

[26] Based upon the Child Support Guidelines, I order that the Respondent pay monthly to the Applicant the sum of $235 commencing September 1, 2019.

Pick up and Drop Off

[27] In my decision I noted that if the parties could not agree upon who should pick up and drop off the child for the Respondent’s access within 30 days that they should provide written submissions to me.

[28] There is some mention of this issue in the cost submissions, but I am not satisfied that there is sufficient information for me to make a determination from that information, nor has the 30 days expired.

[29] If the parties cannot agree upon this issue, then I require written submissions. The Applicant shall provide her submissions no later than April 15, 2019; the Respondent’s submissions shall be provided 10 days thereafter and the Applicant’s reply, if any, shall be provided 5 days thereafter.

Summary

[30] In summary, I order that the Respondent pay costs to the Applicant in the total amount of $19,000 fixed, inclusive of HST.

[31] I order that the Respondent pay child support monthly commencing September 1, 2019 to the Applicant in the amount of $235 based upon an income in 2018 of $27,889.40 Cdn.

D.L. Edwards J. Released: April 4, 2019