COURT FILE NO.: 14154-02
DATE: 2019/09/03
ONTARIO
SUPERIOR COURT OF JUSTICE -- FAMILY COURT
BETWEEN:
BONNIE JEAN HACHEY
Applicant
– and –
GEORGE ALAN BIGGAR
Respondent
R. Trivieri, for the Applicant
Self-represented
HEARD: April 10 – 12 and 16, 2019
R. Reid J.
ADDENDUM TO REASONS FOR DECISION and decision on costs
[1] In my oral reasons for decision, delivered on April 30, 2019, I dealt with the issues of arrears of child support and section 7 expenses including retroactive variation of child support as well as the respondent’s obligations for future child support and section 7 expenses.
[2] I invited further submissions from the parties to correct any possible arithmetical errors or incorrect assumptions, particularly on the arrears issue given that the parties had used different approaches for addressing support and section 7 expense arrears.
[3] I also invited written submissions on costs, the last of which were filed on May 21, 2019.
[4] Based on those submissions and further consideration, my final endorsement will be recorded as set out below.
Addendum and Final Calculations:
[5] It was undisputed that the $3,000 contribution to the children’s RESP contemplated by the order of Justice Henderson dated August 27, 2009 was not paid by the respondent. As the parties have now confirmed, that amount was not already accounted for in the arrears calculated by the FRO and therefore it should be added to the arrears total. There will be an order to that effect.
[6] In my oral reasons, I confirmed the need to add support arrears accrued before July 1, 2014, which were not included when arrears began to be enforced by the FRO. I calculated an additional support obligation from September 1, 2009 totaling $14,774. However, that amount should not be added to the arrears since some payments were made by Mr. Biggar pursuant to his obligation. I have had reference in particular to Exhibit 17 and to tab 7 of Exhibit 33 which contain the calculations of each party.
[7] I have calculated child support payable from September 1, 2009 to June 1, 2014 to be $54,020. That figure was reached using Mr. Biggar’s taxable income for the years 2008 through 2013, and including imputed income at $45,000 per year for 2008, 2012 and 2013. As well, I have used the 2006 Federal Child Support Guidelines up to December 1, 2011 and the 2012 Guidelines thereafter.
[8] In Exhibit 17, Mr. Biggar groups his payments in totals referring to parts of the calendar years. In Exhibit 33, Ms. Hachey identified individual payments by month. To the extent that the two methods of calculation produce a slightly different balance, I accept that provided by Ms. Hachey showing total payments received of $52,242 between September 1, 2009 and June 1, 2014.
[9] Based on the difference between support payable ($54,020) and paid ($52,242), the arrears owing as of July 1, 2014 were $1,778, which must be added to the arrears of $35,213.65 shown in the statement from the FRO updated to May 3, 2019 which reflects payments made from July 1, 2014 to May 2, 2019. There will be an order to that effect.
[10] Mr. Biggar identified an arithmetical error in my calculation of the support payable for 2016. I ordered that support be payable for the first eight months of that year in the monthly amount of $674 and for the last four months of that year in the monthly amount of $546. The total for the year for the two children was therefore $7,576 and the total credit for child support arrears then becomes $8,365. There will be an order to that effect.
[11] As to section 7 expenses, the applicant submitted that total expenses were incurred for the two children, apart from post-secondary expenses, in the amount of $9,437.36. In their submissions, the applicant noted that during his evidence, Mr. Biggar agreed to his responsibility for 50 percent of that amount, being $4,718.68. Likewise, he agreed to be responsible for $112.52 being his share of Dylan’s co-op expense. Those amounts will therefore be added to the arrears owing by the respondent.
[12] In my oral reasons, I calculated section 7 arrears owed by the respondent for Meghan’s post-secondary expenses to be $5,285.50. Mr. Biggar has submitted that rather than $11,600 (which I found to be the case), the contribution by Meghan to those expenses should have been $15,663. Based on the evidence, there will be no adjustment to my previous decision.
[13] In summary, support arrears shown on the May 3, 2019 FRO statement of $35,213.65 are to be adjusted as follows:
• $3,000 is to be added relating to RESP contributions not made;
• $2,172 is to be added relating to notional interest and government grants on RESP contributions not made;
• $1,778 is to be added relating to support arrears accrued before July 1, 2014;
• $4,831.20 ($4,718.68 + 112.52) is to be added as agreed section 7 expense arrears;
• $5,285.50 is to be added as section 7 expense arrears for Meghan’s post-secondary education costs; and
• $8,365 is to be deleted from the total arrears based on the respondent’s revised support obligations;
[14] As a result, the sum of $8,701.70 will be added to the arrears being enforced by the FRO for an arrears total as of May 3, 2019 of $43,915.35.
[15] As set out in my oral reasons, ongoing child support for Meghan will be $461 per month or $230.50 per month depending on whether she lives at home or away from home (at school or participating in a co-op program) based on annual income of Mr. Biggar of $50,000.
[16] Arrears are to be paid commencing May 1, 2019 in the amount of $500 per month through to December 31, 2019. Thereafter, arrears are to be paid at the rate of $750 per month until fully paid. Arrears payments are in addition to any ongoing support payable.
[17] Post-judgment interest will be calculated at three percent per annum.
[18] A Support Deduction Order will issue.
[19] Section 7 expenses incurred in the future will be shared by the parties on a 50-50 basis. That arrangement is consistent with the parties’ agreement in the past. To the extent that section 7 expenses are incurred in relation to Meghan’s postsecondary education, the amount for which the parties are responsible will be the balance after her own reasonable contribution is made.
[20] Mr. Biggar requested that he be permitted to make payments of section 7 arrears and ongoing payments directly to Meghan.
Costs:
[21] The court’s discretion to award costs arises from the versions of section 131 of the Courts of Justice Act. The factors contained in Rule 24 of the Family Law Rules guide the exercise of that discretion.
[22] The costs rules are designed to foster three fundamental purposes, namely (1) to partially indemnify successful litigants for the cost of litigation, (2) to encourage settlement, and (3) to discourage and sanction inappropriate behavior by litigants. Ultimately, cost awards must reflect what the court considers to be an amount that is fair and reasonable to be paid by one party to the other.
[23] In this case, the respondent submitted that he incurred costs for lawyers in the total amount of $10,067.11. From that sum, he admits that $1,185 can be deducted as attributable to legal services focused on securing a refraining order in the FRO enforcement proceedings. He incurred a disbursement for using DivorceMate software of $500 and estimated that he lost 80 hours of work time to prepare for the trial which he claimed at a rate of $25 per hour. His costs claim is therefore $11,382.11.
[24] The applicant submitted a bill of costs inclusive of disbursements of $43,776.35 plus an additional $1,700 for preparation of costs submissions.
[25] The applicant seeks an order based on 70 percent of her costs in the amount of $32,343.45 plus $1,700 for a total of $34,043.45. The respondent submits that each party should bear her or his own costs.
[26] Much of the trial time in the four-day trial was focused on the past financial circumstances of the respondent: his income and his ability to earn income. The question was how those circumstances should affect the calculation of support arrears. He was alleged to have been living a lifestyle more comfortable than his modest declared income would support. Mr. Biggar was successful in receiving a decision in which his taxable rather than total income was used for support calculation but unsuccessful in seeking to avoid the minimum imputation of $45,000 per year income. He was unsuccessful in a submission that child support be retroactively ordered in an amount different from Guideline support based on undue hardship.
[27] Mr. Biggar was successful in a retroactive variation of support arising from the change in principal residence of his son Dylan. That was not a matter of significant contention. Similarly, he was successful in a retroactive and ongoing variation of support arising from the reduced time that his daughter Meghan lives with the applicant during the course of her post-secondary studies.
[28] During the trial, the respondent conceded his obligation to pay past section 7 expenses claimed by the applicant, with the exception of post-secondary expenses for Meghan. On that latter subject, he challenged the applicant’s claim on the basis that expenses were not correctly categorized. He was only partially successful and I found most of the expenses claimed to be appropriate or alternatively reduced funds available to Meghan for her contribution in view of appropriate personal expenses incurred by her.
[29] Both parties made offers to settle. Neither party’s offer was as good as or better than the terms of my decision.
[30] As a result, there was clearly divided success. In that event, Rule 24(6) provides that the court may apportion costs as appropriate.
[31] The applicant submits that the respondent acted in bad faith in failing to make complete and timely financial disclosure, which should impact on the costs award. The respondent denies the allegation and submits that disclosure was either provided or made available well before trial. Even if the respondent was less than forthcoming with detailed financial information, I cannot conclude that he acted in bad faith.
[32] Neither do I criticize the applicant for being skeptical of the financial information disclosing very modest income by the respondent based on her observations of his lifestyle. It was appropriate for the applicant to dispute the claim for reduced arrears under the circumstances.
[33] The matter proceeded through to the conclusion of a four-day trial which was consistent with the estimates provided at the trial scheduling conference.
[34] In all the circumstances of this case, there should be a sharing of costs. I consider that a reasonable result is for the total litigation costs to be borne more or less equally by the two parties.
[35] There will be in order that the respondent pay costs to the applicant fixed in the amount of $17,000 inclusive of HST and disbursements. Since the entire issue at trial related to support, there will be an order that this costs award constitutes a support order within the meaning of s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, and as such shall be enforceable by the Family Responsibility Office.
R. Reid J.
Released: September 3, 2019
COURT FILE NO.: 14154-02
DATE: 2019/09/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BONNIE JEAN HACHEY
Applicant
– and –
GEORGE ALAN BIGGAR
Respondent
addendum to reasons for decision and decision on costs
R. Reid J.
Released: September 3, 2019