COURT FILE NO.: 299/14
DATE: 2021-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Jane Anne Cervi
Applicant
– and –
Iain Ross Buchanan McDonald
Respondent
Virginia Workman, for the Applicant
Christopher Hiebert, for the Respondent
THE HONOURABLE JUSTICE J. R. HENDERSON
ENDORSEMENT
[1] This endorsement will deal with the issues raised by the parties in written submissions following my Reasons for Judgment, dated March 12, 2021, after the trial of this matter.
[2] Both parties raise a legitimate issue as to the manner in which monthly child support should be calculated for the periods in which I ordered that the respondent pay monthly support for Abi of 100 percent of the Guidelines amount, and monthly support for Alex of 25 percent of the Guidelines amount. I will refer to this as issue #1, as described in the respondent’s written submissions.
[3] It is the applicant’s position that the court should use the one child Guidelines amount for each of the two children, and order 100 percent of the one child Guidelines amount for Abi and 25 percent of the one child Guidelines amount for Alex.
[4] It is the respondent’s position that the court should use the two child Guidelines amount, and allocate one half of the two child Guidelines amount to each child before reducing Alex’s support to 25 percent.
[5] In my view, both of the above-mentioned approaches are incorrect. The applicant’s approach fails to recognize the economies of scale that exist when more than one child lives in the same household. On the other hand, the respondent’s approach would result in total child support for the two children of only a few dollars more than the Guidelines amount for one child alone.
[6] Therefore, for the months in which this situation exists, I direct that monthly child support for Abi will be 100 percent of the one child Guidelines amount. Child support for Alex will be 25 percent of one half of the two child Guidelines amount. The parties should recalculate the child support payable using this direction.
[7] In issue #2 of his written submissions the respondent submits that the court erred by failing to give proper credit to the respondent for money paid toward Abi’s education. In fact, there is no error in this calculation as I gave credit to the respondent for a payment of $500, which was the evidence as set out in the agreed statement of facts that was filed at the trial.
[8] Similarly, in issue #3 of his written submissions the respondent submits that the court used the wrong amount for the calculation of Abi’s tuition expense. In fact, the figure that I used in my Reasons was the most current of several figures that were presented at trial. There is no error in this calculation.
[9] In issues #4 and #5 in his written submissions the respondent asks for certain further relief that was not contained in my Reasons. Among other things, the respondent asks for an order that prescribes a formula for future education expenses and for an order that any money owing by the respondent be paid directly to the children. These requests were not raised in the pleadings and/or were not raised at trial. The draft order presented by the respondent in closing submissions did not include any of these requests. It is not proper to raise these issues now by way of uninvited written submissions post trial.
[10] For these reasons, all of the requests made by the respondent as issues #2, 3, 4, and 5 are dismissed.
[11] In order to resolve some of the obvious quibbling between the parties, I wish to make some comments about the drafting of the order. The formal order may, but need not, contain a reference to the amounts paid by the respondent; it need only set out the amounts that remain owing. In addition, if I order that money is payable by the respondent, that means that it is payable to the applicant. Further, any money payable to the applicant for child support or education expenses will be paid through F.R.O. unless the parties agree otherwise.
[12] Regarding costs, both of the parties refer to their offers to settle, one from the applicant and two from the respondent. In my view, all of the offers to settle are very difficult to comprehend as the offers contain several pages of suggested findings of fact and methods of calculations. Large parts of the offers to settle resemble pleadings; they do not constitute offers to pay money. Therefore, it is not appropriate to compare the offers on a line-by-line basis to each other or to the decision of the court.
[13] This case was, at its heart, a case about payment of money. Therefore, the only way to compare the offers to the court decision is to calculate the bottom line of each offer.
[14] In the respondent’s first offer, dated November 24, 2020, the respondent offered to accept a credit for an overpayment of monthly child support in the amount of $3,943. He then conceded that some money will be owed for education expenses. The bottom line of this offer is that the respondent offered to pay $2,144 in total.
[15] In the respondent’s second offer, dated December 4, 2020, the respondent still claimed a credit of $3,943 for monthly child support, and did not offer to pay any particular amount for education expenses. Rather, the respondent set out a complicated method of calculating education expenses without a bottom line. In my view the respondent’s second offer does not constitute an offer at all for the purpose of a costs order.
[16] The applicant’s offer, dated November 26, 2020, also contained complicated calculations. The applicant submits that her offer allows for a credit of $813 to the respondent for the overpayment of monthly child support. However, at paragraph 26 of her offer to settle the applicant offered to accept a payment of $1,866 for additional monthly child support and a payment for education expenses of $21,478. Thus, the bottom line of this offer is that the applicant offered to accept a total amount of $23,344.
[17] In my written decision I found that the respondent owed both monthly child support and education expenses. Using the above-noted method for calculating the child support I find that the respondent will be required to pay the additional sum of $3,541 for monthly child support. Further, I ordered payment of education expenses that will amount to a total of $19,667. Therefore, the total amount payable by the respondent pursuant to the court order is $23,208.
[18] In my view the applicant was clearly the successful party at trial as the applicant achieved a court order for payment of money to her. The applicant is entitled to her costs. I note that the applicant’s offer is very close to the amount ordered by the court, but it still exceeds the amount ordered by the court. Having considered all of the relevant factors, I find that the applicant is entitled to her partial indemnity costs for the entire proceeding.
[19] The bill of costs submitted by the applicant shows 56.8 hours of total time spent by counsel on this proceeding. In my view this is a reasonable amount of time for the services that were rendered. I will allow $225 per hour on a partial indemnity basis for fees of $12,780, plus HST, for a total of $14,441.40. I will also allow disbursements of $1,856.36. I will round up the total costs amount in order to include some costs for these written submissions and the drafting of the order. Total costs are fixed at $17,000 all inclusive.
[20] Therefore, I order costs payable by the respondent to the applicant in the total amount of $17,000, payable within 60 days.
[21] Regarding next steps, the applicant shall prepare a new draft order based upon this endorsement. The respondent shall review the draft order and approve it as to form and content if it accurately sets out the decision of this court. The draft order and the approved copy will then be sent to my attention for signature.
[22] No further written submissions will be accepted from either party. If the parties cannot agree on the form and content of the order, the parties will contact the trial coordinator to arrange to appear before me to settle the order.
J.R. Henderson J.
Released: April 12, 2021
COURT FILE NO.: 299/14
DATE: 2021-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Jane Anne Cervi
Applicant
and
Iain Ross Buchanan McDonald
Respondent
ENDORSEMENT
J.R. HENDERSON J.
Released: April 12, 2021