COURT FILE NO.: FC-17-2398-1
DATE: February 14, 2019
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Quinn v Quinn
BETWEEN: Pierre Joseph Quinn, Applicant and
Heather Quinn, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Michèle Labrosse for the Applicant
Self-Represented Respondent
DATE HEARD: Written Submissions
COSTS ENDORSEMENT
James J
[1] This is a costs endorsement in relation to a motion to change brought by the applicant. The motion was substantially, but not completely, successful. The applicant obtained an order terminating child support retroactively with the result that the respondent was ordered to repay the applicant $8,880 at the rate of $300 per month.
[2] The applicant was not successful with his request that the respondent be required to pay a portion of the post-secondary schooling costs of their son David. The applicant was also not successful in his request to impute income to the respondent.
[3] The respondent did not file responding material for use at the hearing of the motion. Also, the judge who presided at the case conference directed that factums be exchanged two days before the hearing and the respondent did not do so.
[4] The applicant claims costs of $15,219.55 based on 35.5 hours at $375 per hour, disbursements of $287.38 and HST of $1,750.92.
[5] The respondent delivered a large quantity of documentation in response to the applicant’s costs submissions. Much of the documentation was historical and appeared to be filed in support of a request that the merits of the motion be revisited. The documentation was disorganized and repetitive. It was not prepared in a form that is admissible as evidence. It seems clear that the respondent had difficulties dealing with the issues and intricacies of court procedure on her own.
[6] The applicant referred to two offers to settle that were made prior to the hearing. The first offer proposed that the applicant would reimburse the respondent for about $7,700 of underpaid child support if the respondent agreed to terminate ongoing child support because David was living away from home while attending university. This offer to adjust child support retroactively was due to increases in the applicant’s salary that do not appear to have been disclosed to the respondent. It is not clear how long the respondent underpaid his child support obligation but his proposal was based on a three year retroactive adjustment.
[7] Later, the applicant delivered a second offer to settle wherein increased the amount the applicant was prepared to pay to the respondent as a retroactive adjustment from $7,700 to $9,000.
[8] With this information now available, it is obvious that the outcome of the motion was disastrous for the respondent. Instead of receiving a $9,000 payment from the applicant, the respondent was ordered to pay approximately the same amount to the applicant. In addition, she is faced with a $15,000 claim for costs.
[9] The respondent says she has some mental health issues that keep her from being able to work fulltime and she has been under psychiatric care for years, although the details of her condition are unclear.
[10] While it is true that the applicant made favourable offers to settle that trigger costs consequences for the respondent, it is also apparent that success on the motion was divided. The applicant was partially but not successful.
[11] The awarding of legal costs is a matter of judicial discretion. The applicable factors are set out in the Family Law Rules. The unusual feature here is that while the applicant was at least partially successful on this motion, there is evidence that now suggests that the applicant under-reported and underpaid child support for at least three years and possibly longer.
[12] If the respondent had been able to better represent herself, the situation may have ended up differently. Considering the respondent’s modest income, it seems to me that it will be difficult for her to pay the amount she was ordered to repay to the applicant, without adding the increased financial burden associated with a substantial costs award.
[13] In the circumstances, I am of the view that there should be no order respecting costs. This disposition should in no way be seen as a reflection on counsel for the applicant. The applicant’s material was well-prepared and well-presented. I also have considered that the applicant made a genuine effort to avoid the necessity of bringing this motion. In one sense he was forced to incur the legal costs associated with the motion by what appears to be the poor choices made by the respondent.
[14] At the bottom, however, after weighing the various factors, I have concluded that requiring the respondent to pay costs to the applicant would constitute an unjustifiable hardship. Therefore, there will be no order respecting costs.
James, J.
DATE: February 14, 2019
COURT FILE NO.: FC-17-2398-1
DATE: February 14, 2019
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Quinn v Quinn
BETWEEN: Pierre Joseph Quinn, Applicant and
Heather Quinn, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Michèle Labrosse for the Applicant
Self-Represented Respondent
COSTS ENDORSEMENT
James, J.
DATE: February 14, 2019