COURT FILE NO.: D13953/12-01

DATE: 2020-11-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Janet Lynn Reeder Applicant

– and –

Vincent Shiu Respondent

Deborah Ditchfield, Counsel for the Applicant

Self represented

HEARD: November 17, 2020 by Zoom

THE HONOURABLE MR. JUSTICE G.E. TAYLOR

REASONS FOR DECISION

Introduction

[1] The parties are the parents of Gabriel, born August 27, 2011. Nightingale J. made a Final Order on January 21, 2014 which gave sole custody of Gabriel to the applicant, subject to supervised access by the respondent, and ordered the respondent to pay child support of $400 per month based on an income of $44,369. The Final Order also apportioned responsibility for payment of certain debts as between the parties.

[2] The respondent initiated a Motion to Change the Final Order of Nightingale J. on December 5, 2014. The changes sought were to have unsupervised overnight access of Gabriel and to reduce child support to $256 per month.

[3] On August 25, 2020, Sheard J. made a Final Order, on consent, that the respondent have no access to Gabriel except on terms determined by the applicant in her sole discretion, that issues relating to the enforcement of prior court orders and costs proceed to the trial of an issue, that the Motion to Change be withdrawn.

[4] The trial proceeded before me.

Procedural History

[5] By way of a Final Order dated March 12, 2014, Nightingale J. awarded costs payable by the respondent in the amount of $11,150.39, inclusive of HST. The parties appeared before Flynn J. on October 31, 2014 at which time the matter was adjourned with costs reserved to the judge hearing the motion. On November 21, 2014 Gordon J. directed the respondent to issue any Motion to Change immediately, adjourned all matters to a Case Conference and reserved costs to the judge hearing the motion. The latter two appearances were in relation to a contempt motion brought by the respondent.

[6] The following table sets out the many court appearances which have taken place in the Motion to Change proceeding:

Date	Event	Result	Costs
January 27, 2015	Case Conference	Leave to bring Motion for Summary Judgment	No costs
February 15, 2015	Scheduling		No costs
June 12, 2015	Motion for Summary Judgment	Motion dismissed	Costs to respondent of $500
	Motion for leave to appeal	Leave refused	Costs to respondent of $300
February 24, 2017	Settlement Conference	Trial of issues directed	Reserved to trial judge
June 16, 2017	Scheduling	Date for hearing of Motion to Strike set	Reserved to judge hearing motion
July 14, 2017	Motion to Strike	Various orders made	Reserved to trial judge
August 12, 2019	Motion to Strike	Issues referred to trial judge	Reserved to trial judge
January 31, 2020	Motion to Change	Final Order - support
August 25, 2020	Motion to Change	Final Order - access	Reserved to trial judge

[7] The order made on July 14, 2017 included the following terms:

(a) that the respondent owed the applicant the sum of $15,356.21 in costs ordered by Nightingale J. and monies paid by the applicant to discharge the respondent’s car loan;

(b) that the respondent pay to the applicant the sum of $1,500 on or before July 21, 2017;

(c) that the respondent pay to the applicant the sum of $250 per month commencing August 1, 2017 until the amount owing is paid in full;

(d) that the respondent obtain a release of the applicant on a TD Canada Trust student line of credit on or before August 14, 2017;

(e) that the cost owing by the applicant to the respondent in the amount of $800 had been satisfied by a reduction in the amount owing by the respondent to the applicant; and,

(f) that costs on the motion to strike be adjourned to the trial judge.

Evidence at Trial

[8] The applicant testified that the respondent did not fulfill his obligations pursuant to the order of Nightingale J. dated January 21, 2014 and that the cost award made on March 12, 2014 remains outstanding. Although the applicant paid off the loan owing for her motor vehicle, the respondent failed to pay the debt owing on his motor vehicle. She paid $3,000 of the amount owing by the respondent on the car. The respondent also failed to pay the amount owing on the Joint Student Line of Credit in the amount of $7,919.66, as he was ordered to do. The applicant testified that she has paid $1,700 of the amount owing on the student loan debt and that there is presently a balance outstanding of $4,530.97.

[9] The applicant testified that as of November 15, 2020, the Family Responsibility Office showed that the applicant is in arrears of support in the amount of $12,142.53.

[10] The applicant testified that the Order made by Lafreniere J. in July 2017 setting out a payment schedule for payment of the car loan and the cost award was not followed by the respondent until July 2020.

[11] The respondent cross-examined the applicant but not about the payments she had made on his behalf because of his failure to comply with previous court orders. The respondent did not testify.

[12] I therefore find that the applicant is entitled to judgment against the respondent for $1,700 representing payments made by the applicant on the Joint Student Line of Credit. The applicant, through her counsel, asked that I award judgment in her favour for the balance owing on the student loan debt and order that she pay the balance owing. I question my authority to make such an order and therefore decline the applicant’s request.

[13] I do not believe any further order is required with respect to payment of costs and the payment made by the applicant on the respondent’s car loan because those matters are dealt with by the Order of July 14, 2007, which remains in full force and effect.

Costs

[14] The applicant seeks partial indemnity fees in the amount of $38,068.57 for fees and $4,951.81 for disbursements in relation to the respondent’s Motion to Change. The respondent’s position is that costs should be awarded to him in the amount of $500.

[15] In my view, the applicant is entitled to costs of the Motion to Change. The respondent was completely unsuccessful. After more than five years of litigation he agreed to an order for no access and an increase in child support.

[16] I have reviewed the Bill of Costs. The respondent did not challenge the proposed hourly rates for counsel nor any specific item for fees or disbursements. The partial indemnity hourly rates set out in the Bill of Costs appear reasonable to me.

[17] No costs are sought for the appearances in relation to the contempt proceeding.

[18] With the exception of three orders, all of the orders made in relation to the appearances on the Motion to Change reserved costs and I am satisfied that such costs were ultimately properly referred to the trial judge. Three orders, namely those made on January 27, 2015, February 26, 2015 and January 31, 2020 are silent with respect to costs. I have reviewed the time records in the Bill of Costs and am satisfied that the amounts sought for those court appearances amount to less than five hours of lawyer and clerk time. The Bill of Costs did not include any time for preparation for, or attendance at trial. It is my view that the time spent preparing for and attending at the appearances for which the applicant was not awarded costs is less than the applicant’s costs for the trial. I am also satisfied that the applicant does not seek costs in relation to the unsuccessful Motion for Summary Judgment or the Motion for Leave to Appeal. None of the disbursements appear unreasonable.

[19] I therefore fix the costs of the applicant for the Motion to Change in the amount of $43,000, inclusive of disbursements and HST payable by the respondent, forthwith.

Summary of Conclusions

[20] There shall be judgment in favour of the applicant against the respondent in the amount of $1,700 plus costs fixed in the amount of $43,000.

[21] The respondent sought a reduction in child support. The applicant was successful in obtaining an order that the child support be increased. Therefore, I direct that $25,000 of the amount awarded to the applicant for costs be recoverable by way of the Family Responsibility Office as child support.

Taylor, J.

Released: November 20, 2020